The Original Meaning of the Establishment Clause

'OL. 14

ISSUE 1 OCTOBER 2005

A STUDENT PUBLICATION OF THE COLLEGE OF WILLIAM & MARY

SCHOOL OF LAW

THE ORIGINAL MEANING OF THE ESTABLISHMENT CLAUSE
Robert G. Natelson'

' appeal to the gentlemen who have heard the 7 voice of their country.
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James Madison, pleading for congressional adoption of the Bill of Rights1

INTRODUCTION .................................................. 75 G N'S WHATIT WASAND I. THEFOUNDERS' E N T L E ~ ~ AGREEMENT: WHATITDID ................................................ 81 A. Formation of the Agreement During the Ratification Debates ....... 81 B. Execution of the Agreement in Congress ....................... 84 II. THERELIGION TERMS THE GENTLEMEN'S IN AGREEMENT: FREE EXERCISE ...................................................88 A. Introduction .............................................. 88 B. Reliance of the Policy Against Establishment on the Policy of Free Exercise ...................... :...................... 88 C. Why A Free Exercise Clause Was Deemed Necessary ............ 90 D. What Did the Founding Generation Mean by "Free Exercise?" ..... 97 m.THERELIGION I THE GENTLEMEN'S TERMSN AGREEMENT: THE CONSTITUTION'S OATHS AND THEBANON RELIGIOUS TESTS ......... 101 N. n-IE RELIGION TERMS IN THE GENTLEMEN'S AGREEMENT: THE ESTABLISHMENT CLAUSE ..................................... 112 A. Evidence that the Establishment Clause Protected Only Theists .... 113 1. Fostering religion ..................................... 113

* Professor of Law, University of Montana; Senior Fellow, the Goldwater Institute; Senior Fellow in Constitutional Jurisprudence, the Independence Institute; President, Montana Citizens for the Rule of Law. I am grateful for the assistance of the staff of the Bodleian Law Library, University of Oxford, England; also to Andrew P. Morriss, Galen J. Rouch Professor of Business Law and Regulation, Case Western Reserve University School of Law, and Jessie Hill, Assistant Professor of Law, Case Western Reserve University School of Law, for review of the manuscript and many helpfil suggestions; Professor Stacey L. Gordon, Reference and Acquisitions Librarian, University of Montana School of Law for tracking down rare materials; and Charlotte Wilmerton, University of Montana School of Law, for secretarial assistance. ' 1 ANNALSOF CONG.775 (Joseph Gales ed., 1834).

2. The Faith-Based Ideology of Disestablishment . . . . . . . . . . . . . . 119 3. An Objection, and A Response, on the Theistic Basis for the Establishment Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 B. Evidence that the Establishment Clause Protected All Theists . . . . . 125 V. CONGRESSIONAL ADOPTION THE RELIGIONCLAUSES . . . . . . . . . . . . 133 OF . CONCLUSION^ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

* REPEATEDLY REFERENCED WORKS: convenience, this note collects alphabetically For the secondary sources cited more than once in this Article. The editions and short form citations used are as follows: 1 ANNALS CONG. OF (Joseph Gales ed., 1834) mereinafter ANNALS]. JOSEPH ADDISON, CATO: ATRAGEDY SELECTED AND ESSAYS (Christine Dunn Henderson & Mark E. Yellin eds., 2004) [hereinafter ADDISON, CATO] CHESTER JAMES ANTEAU AL., FREEDOM ET. FROM FEDERAL ESTABLISHMENT: FORMATION AND EARLY HISTORY OF THE FIR!ST AMENDMENT &LJGION CLAUSES (1964) mereinafter ANTlEAu]; ERWIN CHEME-Y, CONSTITUTIONAL PRJNCIPLES POLICIES 997) pereinLAW: AND (1 after CHEMER~SKY]; ROBERT CORD,SEPARATION CHURCH L. OF AND STATE:HISTORICAL FACTAND CURRENT FICTION 988) [hereinafter CORD]; (1 CREATING BILL RIGHTS: DOCUMENTARY THE OF THE RECORD FROMTHE FIRST FEDERAL CONGRESS (Helen E. Veit, Kenneth R Bowling & Charlene Bangs Bickford eds., 1991) [hereinafter CREATING BILL OF RIGHTS]; THE DANIELDREISBACH, L. THOMAS JEFFERSON THE WALL. OF SEPARATION AND BETWEEN CHURCH STATE AND (2002) [hereinafter DREISBACH]; JONATHANEWT, DEBATES THE SEVERAL THE IN STATE CONVENTIONS ADOPTION ON THE OFTHE FEDERAL O N S ~ O N C (5 vols; 1941 e d inserted in 2 vols.) (2d ed. 1836) [hereinafter ELUOT'S DEBATES]; MAX FARRAND (ED.),TIE RECORDS THE FEDERAL OF CONVENTION 1787 (1 937) (4 OF vols.) [hereinafter FARRAND]; Noah Feldrnan, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346 (2002) [hereinafter Feldman]; THEFEDERALIST (George W. Carey & James McClellan eds., 2001) mereinafter THE FEDERALIST]; PHILIP HAMBURGER, SEPARATION CHURCHAND STATE (2004) bereinafter OF
HAMBURGER] ;
2 WILLIAM HAWKINS, TREATISE THEPLEAS THE CROWN A OF OF (Garland Publ'g, Inc. 1978) (172 1) [hereinafter HAWKINS]; MARK DEWOLFEHOWE, THE GARDEN AND THE WILDERNESS: RELIGIONAND GOVERNMENTAMERICAN IN CONSTITUTIONAL HISTORY 965) [hereinafter HoWE]; (1 ISAAC KRAMNICK R. LAWRENCE & MOORE, GODLESS O N S ~ O THECASE THE C N: AGAINST RELIGIOUS CORRECTNESS (1996) [hereinafter KRAMNICKMOORE]; & Philip B. Kwland, The Origins of the Religion Clauses of the Constitution, 27 W M & . MARY L. REV. 839 (1 986) [hereinafter Kurland]; Kwt L. Lash, The Second Adoption of the Establishment Clause: The Rise ofthe Nones~ablishment Principle, 27 ARIZ. ST. L.J. 1085 (1996) hereinafter Lash]; LEONARD LEW, THE W. ESTABLISHMENT CLAUSE:RELIGION THE FIRST AND AMENDMENT

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ORIGINAL MEANING ESTABLISHMENT OF CLAUSE

On January 3,2005, atheist Michael Newdow filed a complaint in the United States District Court for the Eastern District of California asking that the court enforce the Establishment Clause of the First Amendment' by ordering Congress to remove the words "under God" from the Pledge of Allegiance.* Various plaintiffs joined Newdow in an effort to cure standing problems that had induced the Supreme Court to deny his claim in an earlier action.' The advance announcement of Newdow's lawsuit was one more event in a contentious 2004-2005 holiday season marked by charges that secularists were trying to push Christmas out of public life and by countercharges that Christians were trying to push God down dissenters' throak6 Within three months, the
(1994) [hereinafter LEVY]; Leonard W. Levy, Bill of Rights, in ESSAYS THE ~WUNG THE C O N S ~ O N ON OF (Leonard W. Levy ed., 1987) [hereinafter Levy, Bill of Rights]; THEDOCUMENTARY HISTORY OFTHERATIFICATION C O N S ~ O N OFTHE (Merrill Jensen et al. eds., 1976) (multiple vols. projected; not all completed) [hereinafter - R AY HISTORY]; Michael W. McConnell, The Origins and Understandingof the Free Exercise ofReligion, 103 HARV.L. REV. 1409 (1 990) [hereinafter McConnell]; FORREST MCDONALD, ws ORDO NO SECLORUM (1985) [hereinafter MCDONALD]; Robert G. Natelson, Statutory Retroactivity: The Founders ' View,39 IDAHOL. 489 REV. (2003) [hereinafter Natelson, Statutory Retroactivity]; Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U . KANS.L. REV. 1 (2003) [hereinafter Natelson, General Welfae]; Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 CASEW .RES. L. REV. 243 (2004) [hereinafter Natelson, Necessary and Proper]; Robert G . Natelson, The Constitution and the Public T m t , 52 BUFF. REV. 1077 L. (2004) [hereinafter Natelson, Public Trust]; JOHN NOWAK E. &RONAID ROTUNDA, D. CONSTITUTIONALLAWed. 2004) [herein(7th & after NOWAK ROTUNDA]; STEPHEN SMlTH, FOREORDAINED D. FAILURE: THE QUESTFOR A C O N S ~ O N A L PRINCIPLE RELIGIOUS OF FREEDOM (1995) [hereinafter S m , FOREORDAINED FAILURE]; THE VIRGINIA STATUTE RELIGIOUS FOR FREEDOM: ITS EVOLUTION CONSEQUENCES AND IN AMERICAN HISTORY (Menill D. Peterson & Robert C. Vaughn eds., 1988) [hereinafter VIRGINIA STATUTE]. U.S.CONST.amend. I ("Congress shall make no law respecting an establishment of religion . . . ."). See Original Complaint at 33, Newdow v. United States Cong., No. 2:05-CV-00017LKK-DAD (E.D. Cal. Jan..3,2005), available at http://www.restorethepledge.com/litigation/ pledge/docs/2005-01-03%200rigina1%20Complaint.pdf (last visited Sept. 17,2005). Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004), reh 'g denied, 125 S. Ct. 21 (2004). See, e.g., Stephen Bainbridge, Christmas in the Public Square, http://www.professor

Supreme Court was hearing oral arguments over the question of whether copies of the Ten Commandments should be removed from state buildings in Kentucky7and exa as,' a point on which the Court's justices found themselves severely ~livided.~ Controversy can be stoked by the absence of clear rules,I0 and one thing everyone agrees on is that much of the controversy over the Establishment Clause arises because the Supreme Court's interpretation of the Clause has not been clear." Professor A.E. Dick Howard has called the Court's course of decision a "serpentine wall."12 There are, for example, at least three separate approaches to Establishment Clause adjudication in active use on the Court -"strict separation," "neutrality," and "accommodation" -and any or all of these approaches can appear in the same case? Quite properly, those seeking the meaning of the Establishment Clause have looked to history for answers." Yet several have pronounced the historical record
bainbridge.com/2O04/12/christmasSininth.ht @ec. 17,2004) (last visited Aug. 24,2005) ("It is Christmastime, and what would Christmas be without the usual platoon of annoying pettifoggers rising annually to strip Christmas of any Christian content?") (quoting Charles Krauthammer, Just Leave Christmas Alone, WASH.POST., Dec. 17, 2004, at A33). The 2005-2006 holiday season proved contentious as well, and for similar reasons. See, e.g., Falwellfightingfor holy holiday: He'll sue, boycott groups he sees as muzzling Christmas, SAN FRAN.CHRON., Nov. 20,2005, at Al. ' ACLU of Ky. v. McCreary County, 354 F.3d 438 (6th Cir. 2003), reh 'g denied, 36 1 F.3d 938 (6th Cir.), afd, 125 S. Ct. 2722 (2005). Van Orden v. Perry, 35 1 F.3d 373 (5th Cir. 2003), a r d , 125 S. Ct. 2854 (2005). This is evidenced by the Supreme Court split in McCreary County v. American Civil Liberties Union o Kentucky, and Van Orden v. Perry. In Van Orden v. Peny, the Court f upheld a display on the state capitol grounds in Texas, while the Court in McCreary County struck down the display of the Commandments on the walls of the two courthouses. In both cases, Chief Justice Rehnquist along with Justices Scalia, Kennedy, and Thomas voted to uphold the displays, while Justices O'Comor, Souter, and Ginsberg voted against the displays. Justice Breyer supplied the swing vote, upholding the Texas display, while disallowing the Kentucky display. lo See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN.L. REV.577,578 (1988) (repeating the [not invariably true] observation that "[Wle establish a system of clear entitlements so that we can barter and trade for what we want instead of fighting."). See SMITH,FOREORDAINED FAILURE,supra note 2, at 3-5 (describing commentators' H. SECURING dismay at the course of adjudication on the subject); see also JESSE CHOPER, RELIGIOUS I B E RPRINCIPLES JUDICIAL L ~: FOR INTERPRETATION THE RELIGION OF CLAUSES 1-6 (1995) (detailing the difficulties with history in the Religion Clauses). '* A. E. Dick Howard, The Supreme Court and the Serpentine Wall, in VIRGINIA STATUTE,supra note 2, at 3 13. l3 See CHEMERMSKY, supra note 2, at 977-84 (summarizing the views and illustrating them with three different opinions in County ofAllegheny v. ACLU, 492 U.S. 573 (1989)). Based on the Establishment Clause's "original meaning" as threshed out by the findings of this Article, none of these approaches is correct! I4 The tendency of all sides to do so, in this more than in some other constitutional areas,

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hopelessly confused.15 For example, the debate over the Bill of Rights in the First Congress appears, when not read in context, incon~lusive.'~ records of state The ratification of the Bill of Rights are scanty.'' Therefore, both corn men tat or^^^ and the Supreme Courtlg have turned to the church-state philosophies of Thomas Jefferson and James Madison. The premise here is that the philosophies of these
is noted in Robert P. George, Protecting Religious Liberty in the N& Millennium: Should We Amend the Religion Clauses of the Constitution?, 32 LOY.L.A. L. REV. 27,28 (1998); see also CHEMERINSKY, note 2, at 969-7 1;NOWAK ROTUNDA, supra & supra note 2, at 1411. Is E.g., NOWAK ROTUNDA, & supra note 2, at 1411. l6 Wallace v. Jafiee, 472 U.S.38, 95 (1985) (Rehnquist, J., dissenting) ("The entire debate on the Religion Clauses is contained in two full columns of the 'Annals,' and does not seem particularly illuminating."). " The records are summarized in m u , supra note 2, at 143-58. la See, e.g., Thomas E. Buckley, S.J., ?he Political Theology of Thomas Jefferson, in VIRGINIA STATUTE, supra note 2, at 75; Lance Banning, James Madison, the Statute for Religious Freedom, and the Crisis of Republican Convictions, in VIRGINIA STATUTE, supra note 2, at 109; KRAMNICK & MOORE, supra note 2, at 88-1 30 (discussing Jefferson's views at length); Steven H, ShifEin, The Pluralistic Foundations of the Religion Clauses, 90 CORNELL REV. 9,43, 61 (2004) (discussing Madison's and Jefferson's personal notions L. of the relationship between religion and state). Historian Leonard W. Levy.discusses Madison's views at length -and then admits, correctly, that the First Amendment does not embody Madison's personal views. LEVY, supra note 2, at 119-33. Cf: in9a notes 67,73-75, 289 and accompanying text. l9 See, e.g.,Flastv.Cohen,392U.S. 83(1968). . Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. James Madison, who is generally recognized as the leading architect of the religion clauses of the First Amendment, observed in his famous Memorial and Remonstrance Against Religious Assessments that '%he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever." The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if govemment could employ its taxing and spending powers to aid one religion over another or to aid religion in general. Id. at 103-04 (internal citation omitted). See also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S.464, 503 (1982) (Brennan, J., dissenting) (stating that "Madison and Jefferson played such leading roles in the events leading to the adoption of the First Amendment."); Everson v. Bd. of Educ., 330 U.S. 1, 11-13 (1947), reh 'g denied, 330 U.S. (1947); Reynolds v. United States, 98 U.S. 145, 855 162-64 (1876) (discussing Jefferson, Madison, the Virginia disestablishment battle, and quoting the "wall of separation" language).

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two men are key to interpreting the religion clauses, particularly because of their role in the Virginia disestablishmentbattle.20But the premise is wildly inacc~rate.~' There were hundreds of actors from all over the country involved in the crafting and adoption of the First Amendment. It is safe to say that most did not draw their inspiration from either the personal opinions of Jefferson and Madison, nor fiom a Virginia disestablishment fight most probably had never heard of. Indeed, Jefferson's immediate role in the adoption of the First Amendment was rather insignificant. He had served as minister to France since 1785 and did not return to America until November 23, 1789, after the Bill of Rights had been approved by Congress and sent to the states for ratification.= Even if he had played a more active part, Jefferson's freethinking outlook on religion (whether classified as deist or Unitarian)23 hardly representative of those who debated and ratified was that Amendment. Madison, more mainstream than Jefferson and therefore more was sympathetic to religi~n,"~ a far more central figure for our purposes. He introduced the first draft of the Bill of Rights in Congress and shepherded it to approval there. Yet Madison plainly implied on the floor of Congress that the Establishment Clause embodied views other than his own.25
20 See, e.g., Menill D.Peterson & Robert C. Vaughn, Editor's Preface to VIRGINIA STATUTE,supra note 2, at vii-xi. 2 1 See James J. Knicely, "First Principles" and the Misplacement of the "Wall of

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Separation " Too Late in the Day for a Cure?, 52 DRAKE REV. 171 (2004). : L. Everson's solemn invocation of Jefferson and Madison, and its commanding pronouncements from the Virginia disestablishmentbattle - portrayed as the view subscribed to by most early Americans established a powerful doctrinal engine for a completelynew regime of law in all of the states. The slow but progressive revelation of its incomplete and distorted rendition of that history has produced, however, not only a doctrine in need ofjustification, but a body of law with underpinnings that cannot long withstand the absence of a legitimate rationale for decision. Id. at 205 (internal citations omitted). 22 See B.L. RAYNER,LIFE THOMAS OF JEFFERSON 2 13,265 (1834). Justice Rehnquist also made this point in his dissent in Wallace v. Jafiee, 472 U.S. 38,92 (1985) (Rehnquist, J., dissenting). Jefferson "denied the divinity of Christ and the authority of scripture" and expressed strong support for Unitarianism. McConnell, supra note 2, at 1449-50. But see Thomas E. Buckley, S.J., The Political Theologyof ThomasJeflerson, in VIRGINIA STATUTE, supra note 2, at 77 (claiming that Jefferson's ideas were not so far out of the mainstream). McConnell, supra note 2, at 1453. See infia notes 67,73-75,287-289 and accompanying text. The problems with relying on the opinions of Madison and Jefferson are pointed out by a writer whose predictability on ruch a point docs not alter the fact that his analysis is accurate. See M.G. 'Tat" Robertson, Quwzltig Rcllgkn Out of the Public Square - The Supreme Court, Lemon, and the Myth qflk Smrlur Sociep, 4 WM. & MARYBILL RTS. J. 223.26 1-62 (1995).

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All this has sent commentators looking for clues to meaning fiom developments occurring after - often long after -the Constitution and the Bill of Rights were ratified.26After-the-fact evidence is usually fairly weak, however, and the later the evidence, the less its probative value." Getting the right answer - if it exists - requires that you look in the right place.28 For all these reasons, I submit that courts and commentators have not, by and large, been looking in the right place. Let's start with a very basic question: Why was the First Amendment adopted? Answer: Because political realities demanded it. The crucial political reality of the time was that to secure ratification of the Constitution, the document's proponents, the federalists, had to make a deal, a Gentlemen's Agreement?g They cut the deal with moderate antifederalists and fence-sitters in order to get the votes they needed at state ratifying conventions. Without this political bargain, the Constitution probably would not have been adopted. Under the terms of the bargain, the federalists committed themselves to addressing, after ratification, certain concerns expressed by antifederalists, several of which involved religion. Specifically, the federalists had to acquiesce to a constitutional amendment to ensure that the federal government would neither "establish" religion nor interfere with free exercise. The historical record pertaining to the Gentlemen's Agreement is copious. It is comprised of newspaper articles, pamphlets, personal letters, and complete or partial transcripts of most of the state ratifymg conventions. These materials document the roles of hundreds of actors (not just Jefferson and Madison) and rather clearly illuminate the final bargain. It should be obvious to legal commentators that
26 For example, most of the content in CORD, supra note 2, involves nineteenth-century history decades after ratification. Id. at 59-239. See also Leo Pfeffer, Madison 's "Detached : STATUTE, supra note 2, at 283-3 12 (discussing Memoranda " Then and Now, in VIRGINIA material written by Madison on church-state relations in old age, at least twenty-eight years after the First Amendment was drafted); Stuart Buck, TheNineteenth-CenturyUnderstanding of the Establishment Clause, 6 TEX. REV. L. & POL.399 (2002). Vasan Kesavan &Michael Stokes Paulsen, TheInterpretive Force of the Constitutions ' Secret DraJing History, 9 1 GEO.L.J. 1113,1167 (2003) ("Precedents that are removed &om the Founding era are less likely to reflect original meaning, especially given intervening events, and some precedents are so far removed as to not reflect original meaning at all, and are therefore inadmissible."). Kesavan and Paulsen argue that precedents up to fifty years after the founding ought to be received. Id. at 1168. I'm a little more skeptical. 28 C' Kurland, supra note 2, at 839 ("The right answer depends on the right question; . . . if I could not find the right answer through my research, I was not supposed to make it u.) p". 29 This term for the bargain has been used before, as by the former Chief Justice of the United States. See Warren E. Burger, Address Before the Fifth Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 119 F.R.D.45,80 (1987); see also Rachael E. Schwartz, "EverythingDepends on How YouDraw the Lines": An Alternative Interpretation ofthe Seventh Amendment, 6 SETON HALL CONST. 599,628 (1996) (using L.J. the term and following an earlier source in doing so).

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if the meaning of a writing (here, the Establishment Clause) is uncertain, one way to resolve the uncertainty may be to examine the transactions that produced the writing." Yet in the case of the Gentlemen's Agreement leading to the Establishment Clause, commentators have tended not to do so." One reason may be that some writers are afiaid of what they might find there." Or perhaps the allure of the ever-popular Jefferson and Madison has been too strong." An explanation I long thought was sufficient was that most investigators have not had full access to the ratification record until recently. Today, however, even those of us living out in the boonies (I write fiom Montana) have access to the
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30 E.g., E. ALLAN FARNSWORTH, CONTRACTS7.10, at 492 (1982) ("The overarching 4 principle of contract interpretation is that the court is free to look to all the relevant circumstances surroundingthe transaction. This includes . . . any prior negotiations between them."). Among the many Establishment Clause commentators-on all sides of the debate over the meaning of the Clause - who omit serious discussion of the 1787-1788 ratification debates are: CORD, supra note 2; DREISBACH, note 2; HOWE, supra supra note 2; KRAMNICK & MOORE, supra note 2; LEVY, supra note 2; SMITH, FOREORDAINED FAILURE, supra note 2; JOHN WITTE, RELIGION AND THE AMERICAN CONSTITUTIONAL JR., EXPERIMENT 4 4 63 (2000) (devoting less than a page and a half to the ratification struggle); Veronica C. Abreu, Muddled Original Understandingsof the Establishment Clause:A Comparative Critique of Philip Hamburger's and Noah Feldman 's Historical Arguments, 23 QUINNIP~AC REV. L. 615 (2005); Patrick M. Garry, Religious Freedom Deserves More Than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion, 57 FLA.L. REV. 1 (2005); Douglas Laycock, "Non-Preferential"Aid to Religion: A False ClaimAbout Original Intent, 27 W M & MARY REV.(SPECIAL . L. ISSUE) (1986); Gregory C. Sisk, Stating the 875 Obvious: Protecting Religionfor Religion 's Sake, 47 DRAKE REV.45 (1998); Rodney K. L. Smith, Getting Off on the Wrong Foot and Back on Again, 20 WAKE FOREST REV. 569 L. (1984); Steven D.Smith, Separation and the "Secular":Reconstructing the Disestablishment Decision, 67 TEX.L. REV. 955 (1989); see also NOWAK ROTUNDA, & supra note 2, at 1411-12 (mentioning several influences on the religion clauses, but not the Constitution's ratification history). Some authors have discussed the ratification debates in an abbreviated way. See, e.g., Kurland, supra note 2; Lash, supra note 2, at 1089-9 1 (whose article really is concerned with later history); Henry T. Miller, Comment, Constitutional Fiction: An Analysis of the Supreme Court'sInterpretation Of the Religion Clauses,47 LA.L. REV. 169 (1986). In his examination of the Free Exercise Clause, Professor (now Judge) Michael McConnell largely omitted ratification history on the ground that existing "state constitutions provide the most direct evidence of the original understanding" of the Free Exercise Clause. McConnell, supra note 2, at 1456. The problem with this assertion, of course, is that the existing state constitutions had been adopted years before and often by other people. Two recent works devote more satisfactory attention to the ratification battle. They are Feldman, supra note 2, and HAMBURGER, supra note 2, discussed inza at various points. 32 Kurland, supra note 2, at 840 ("I dare say that most of the so-called literature in the field of first amendment law -my own included -reflects the advocate with a cause rather than disinterested scholarship."). 33 There are, of course, innumerable treatments of both men.

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Internet and its valuable constitutional history web sites." Additionally, we are now blessed with-the continuing, although not yet complete, publication of the University of Wisconsin's Documentary History o the Ratification of the f ~onstitution? On the other hand, Professor Chester Antieau and his coauthors were able to resort extensively to the constitutional ratification record, and they wrote over forty years ago.36 Whatever the reason for the underutilization of ratification material, it appears things may be changing. The last three years have witnessed publication of two impressive Establishment Clause studies making better use of that material. Professor Noah ~eldman-" employs some of it, along with earlier records, to explain the founding generation's free exercise ideology and the emergence of the Establishment Clause from that ideology. Professor Philip Hamburger'* exploits ratification material to dispute the "Wall of Separation" interpretation of the Establishment Clause. This Article builds on both the Feldman and Hamburger studies. In these pages, I demonstrate how the "religion terms" of the Gentlemen's Agreement clarify the meaning of the Establishment Clause so that persistent interpretive difficulties largely disappear. There is one caveat, however: My deductions of original meaning do not necessarily reflect my personal views of what constitutional rules should be.39

A. Formation of the Agreement During the Ratification Debates
The federal constitutional convention met in Philadelphia from May until September, 1787. Upon adjourning, the convention sent its proposed Constitution to Congress for transmittal to state legislatures and, ultimately, to popularly-elected state rati fylng convention^.^

34 Sites maintained by the Constitution Society, http://www.constitution.org, The Avalon and Project at Yale Law School,http://www.yale.edu/lawweb/avalon/avalon.htm, the American Memory site of the Library of Congress, http://memory.loc.gov/arnmemlamlaw/lawhome. html, have proven particularly usell. 35 DOCUMENTARY HISTORY,supra note 2. ANTIEAU, supra note 2, at 100-07, 1 1 1-22. 37 Feldman, supra note 2. 38 See HAMBURGER, note 2. supra 39 For example, I believe that atheists and agnostics should enjoy full civil rights. This, apparently, was not the opinion of many of those who crafted the Gentlemen's Agreement. See, e.g., infia Part 1I.D. 13 DOCUMENTARY HISTORY, note 2, at xl-xli. supra

In an early propaganda victory, proponents of the Constitution convinced the public to label them "federalists"and their adversaries "antifederalists.'"' By early January 1788, federalists had convinced conventions in five states - Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut - to r* by substantial a margins." Thereafter, the opposition stiffened Antifederalists interposed many objections, of which most derived ultimately from the belief that the Constitution would give far too much powerto the central government. Antifederalistspredicted that the central govenunent would abuse that power and effectively obliterate the states and oppress the people. They argued against approval of the Constitution until after a new national convention met and adopted substantial changes. Federalists recognized that such a course involved great practical difficultiesfor the Constitutiona Faced with the unpleasant alternatives of quick defeat or protracted defeat, they made a pact with political moderates -the fence-straddlers and tepid antifederalists. Under the terms of this pact, the federalists made important concessions, and in exchange, the moderates agreed to support the Constitution. These concessions were of three principal kinds. First, the federalists offered authoritative and reassuring interpretations of worrisome parts of the document For example, the antifederalii w r contending ee that the Constitution's ExPost Facto Clausesamight invalidatecivil legislation, such as that necessary to restructure the public debt. Federalists rep-ted that the Ex Post Facto clauses would apply only to criminal laws? Similarly, antifederalists

" Naturally,a n l & & d i &ere piqued at this labeling. See, e.g., ANNALS,supra note w
2, at 759 (qnoting Rep. Elbridge Gerry, a former antifedetalist, vho complained of this labeling and stated that 'Itlheir names then ought not to have been distinguished by federaiists and mtifededim, but rats and antirats."). See 13 Docu~m'rmy W ~ R Y , H supra note 2, at xli (providing the chronology and votes). See, e.g., 3 W S DEBATES, note 2, at 618 (recording Madison's comments supra at the Virginia ratitjhg convention). Suppose eight states ody should ratify, and V i a should propose certain alterations, as the previous condition of her accession. If they [i.e., other states] should be disposed to accede to her proposition, which is the most favorable conclusion, the dif6dty attending it will be immense. Every state which bas decided it, must take up the subject again. They must not onlybave themortificationof ackoowledgingthat they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it Id See U S CONST. t I, 8 9, el. 3 ("No ex post fact0 Law shall be passed."); id 4 10, .. m cl. 1 ("No State shDU pass any ex post fact0 Law.. . ."). Src NaWmn, Siu?urory Rehooclivify, supra note 2, at 493-94.

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argued that the General Welfare Clause4 might be construed as an independent and indefinite grant of national power. Federalists represented -and this seems quaint today4' -that the General Welfare Clause was a limitation rather than a grant of power." Second, the federalists reassured moderates that the states would retain wide jurisdiction exclusive of the central government. Antifederalists had been arguing that the Constitution would sweep all but the most trivial concerns into the national sphere. Federalist speakers and authors, therefore, issued lists enumerating specific functions that would remain the exclusive province of state governments. These functions included, inter alia, the regulation of real estate within state boundaries, governance of agriculture and manufacturing, adjudication of matters between citizens of the same state, and care of the poor." Third, insofar as the foregoing representations were deemed insufficient, the parties agreed that the Constitution, once ratified, would be amended. At ratifying conventions in Massachusetts, South Carolina, New Hampshire, Virginia, andNew York, moderates voted for ratification, and federalists voted to recommend amendments. After ratification, both sides were to work together to secure the needed changes. Moreover, two states - North Carolina and Rhode Island actually postponed ratification until Congress had approved arnendment~.~~ Without this political pact, the Constitutionprobably would not have come into effect." Even with it, the convention majorities for ratification in Massachusetts, and Virginia, New Hampshire, andNew York were quite narrow;52 without if North Carolina and Rhode Island would not have ratified either.s3 In adhering to this bargain, the moderates took a risk. They had no legally enforceable guarantee that, once nine states had ratified and the new government
4ti U.S.CONST. art. I, § 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . ."). 47 The General Welfare Clause or so-called "Spending Clause" is, of course, the constitutionaljustification for much of the modern federal welfare state. See South Dakota v. Dole, 483 U.S. 203 (1987) (upholding conditions on grants to states for unenurnerated congressional purposes); Helvering v. Davis, 301 U.S. 619 (1937) (upholding the Social Security Act); United States v. Butler, 297 U.S. 1 (1936) (expounding a broad interpretation of the clause). 48 See generally Natelson, General Welfare,supra note 2, 49 See Robert G. Natelson, The EnumeratedPowers o States, 3 NEV.L.J. 469,481-88 f (2003). so 13 DOCUMENTARY HISTORY, note 2, at xlii. supra See supra notes 43-50 and infia note 60 and accompanying text. 52 The Constitution was approved in Massachusettsby a vote of 187-168, in Virginia by 89-79, in New York by 30-27, and in New Hampshire by 57-47. 13 -ARY HISTORY, note 2, at xli-xlii. supra 53 See supra note 50 and accompanying text.

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had come into operation, the federalists would fulfill their promise. For that reason, Chief Justice Warren Burger and others have characterizedthe pact as a "Gentlemen's ~ g r e e m e n t , " ~ agreement enforceable only by the honor of the participant^.'^ an Fortunately for the country, honor was no small security among statesmen of the founding generation. Its value was expressed in Joseph Addison's Cato, the most beloved drama of the age? Honour's a sacred tie, the law of kings, The noble mind's distinguishing perfection, That aids and strengthens virtue where it meets her, And imitates her actions, where she is not . . . .57

B. Execution o the Agreement in Congress f
During the public debate over ratification, Madison had opposed a bill of rights.'* Once the new government was instituted, he found that in order to secure election to Congress, he had to promise he would support one.sg So on June 8,1789, he took the floor in the House of Representatives to announce that, despite his earlier opposition to amendments, he was now "bound in honor and in duty'" to advocate some. As he proceeded to do so, he found that his most uncompromising opponents were federalists who had no such debt of honor, for they hailed fiom states like el aware^' and Georgia," where adoption of the Constitution had been early, unanimous, and had not required any gentleman to pledge his word. Madison also ran into more qualified t~ ~ ,~~ foot-dragging fiom Congressmen representing C o ~ e c t i c uand~ a r y l a n dwhere
See supra note 29.

MERRLW-WEBSTER'S COLLEGIATE DICTIONARY 486 (10th ed. 1999) (defining "gentlemen's agreement" as "an agreement secured only by the honor of the participants"). 56 See Forrest McDonald, Forewordto ADDISON, CATOsupra note 2, at viii-x (describing the contemporaneous role of honor and the influence of Addison's Cato); see also Joseph Addison, Guardian, No. 161, in ADDISON, CATO,supra note 2, at 194-97; MCDONALD, supra note 2, at 196-99. " ADDISON, CATO, supra note 2, at 50. 58 See, e.g., 3 ELLIOT'S DEBATES, note 2, at 330 (speaking at the Virginia ratifying supra convention). This opposition was noted by Justice Rehnquist in Wallace v. Jafiee, 472 U.S. 38,98 (1985) (Rehnquist, J., dissenting). 59 The story is told in McConnell, supra note 2, at 1476-79. A N N U , supra note 2, at 441. See also Levy, Bill o Rights, supra note 2, at 284 f (stating that Madison "felt honor-bound to redeem a campaign pledge to his constituents, mindfil that the Constitution 'would have been certainly rejected' by Virginia without assurances fiom its supporters to seek subsequent amendments") (emphasis in original). Id. at 44648,466-67 (Rep. John Vining). 62 Id. at 441-42,459-62 (Rep. James Jackson). See id. at 444-45 (Rep. Roger Sherman). 64 See id. at 441 (Rep. William Smith). The vote for ratification in Maryland was
55

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opposition had not been strong enough to force the federalists to pledge their honor in exchange for victory. Other authors have provided blow-by-blow descriptions of the congressional debate over the bill of rights!' There is no need to do so here. Suffice to say that a fair reading of the congressional proceedings supports the following conclusions. First, Madison proposed some amendmentsbecause he personally thought they would improve the Constitution and others because they were demanded by the Gentlemen's ~ g r e e m e n t .However, as contemporaneous sources attest:' only a ~~ few of his proposals fell into the first category. These included: his favorite (but ultimately unratified) recommendation to limit state infringements on individual liberties," an item for which there had been no public demand;
lopsided: 63-1 1. See 13 D~CUMENTARY HISTORY, note 2, at xli. supra 65 See, e.g., ANTEAU, supra note 2, at 123-42; LEVY, supra note 2, at 88-105. 66 ANNALS, supra note 2, at 450 ("I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellowcitizens . . . ."); see also id. at 459,775. 67 Madison clearly found most of the amendment project distasteful and justified only by the requirements of the Gentlemen's Agreement. Thus, on August 19, 1789, he privately referred to the "nauseous project of amendments." Levy, Bill o Rights, supra note 2, at 258. f Only eight days earlier, Senator Pierce Butler had written to James Iredell as follows: A few milk-and-water amendments have been proposed by Mr. M[adison]., such as liberty of conscience, a free press, and one or two general things already well secured. I suppose it was done to keep his promise with his constituents, to move for alterations; but, if I am not greatly mistaken, he is not hearty in the cause of amendments. THE RIGHTS, Letter from Pierce Butler to James Iredell (Aug. 11,1789), in CREATING BILLOF supra note 2, at 274 (emphasis in original). See also Levy, Bill ofRights, supra note 2, at 284 (quoting Madison as acknowledging that without the promise that a bill of rights would be added to the Constitution, the document "would have been 'certainly rejected' in Virginia") (emphasis in original). That Madison was representing views other than his own was recognized by Justice Rehnquist in Wallace v. Jafiey, 472 U.S.38 (1985): Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures sought by a number of his fellow citizens which could surely do no harm and might do a great deal of good. Id. at 93-94 (Rehnquist, J., dissenting).See also id. at 98 ("[I] t was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution."). 68 ANNALS, supra note 2, at 458 ("I think there is more danger of those powers being abused by the State Governments than by the Government of the United States . . . I should therefore wish to extend this interdiction."); id. at 784 ("Mr. MADISON conceived this to be the most valuable amendment in the whole list.").

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an ultimately unratified amendment pertaining to congressional representati~n;~' and the proposal that became the Takings Cla~se.~' Madison introduced this, in conjunction with the Due Process Clause,71 an effort to plug a hole left in by the ratification-era understanding of the federal Ex Post Facto Clause." All or most of Madison's other amendments, including those on religion, reflected his understanding of the demands of the terms of the Gentlemen's ~greernent."This is shown by his care in distancing his personal views fiom those proposals, even while defending them." When drafting amendments for the sake of the public bargain, rather than for himself, Madison tried to change as little as the bargain would allow."
Id. at 457. U.S. CONST.amend. V (''Nor shall private property be taken for public use without just compensation."). Madison's original proposal is reported in ANNALS,supra note 2, at 451-52 ("No person [shall be] obliged to relinquish his property, where it may be necessary for public use, without a just compensation."). 7' U.S.CONST.amend. V ('To person shall be . . . deprived of life, liberty, or property, without due process of law. ...'3. Madison's original proposal was identical. ANNALS,supra note 2, at 45 1-52. 72 See Natelson, Statutory Retroactivity, supra note 2, at 522-27 (2003). 73 Tench Coxe, a Philadelphia businessman, associate ofHamilton,and leading federalist essayist, told Madison that the latter had succeeded in his purpose very well: I observe you have brought forward the amendments you proposed to the federal Constitution. I have given them a very carefbl perusal, and have attended particularly to their reception by the public . . . . In short the most ardent & initable among our fliends are well pleased with them. On the part of the opposition, I do not observe any unfavorable animadversion. Those who are honest are well pleased at the footing on which the press, liberty of conscience, original right & power, trial by jury &ca. are rested. . . . I feel very great satisfaction in being able to assure you generally that the proposed amendments will greatly tend to promote harmony among the late contending parties and a general confidence in the patriotism of Congress. Letter fiom Tench Coxe to James Madison (June 18, 1789), in CREATING BILL OF THE RIGHTS, supra note 2, at 252. " See, e.g., ANNALS, supra note 2, at 449 (describing constituents' "jealousy" for their liberty as "though mistaken in its object, is laudable in its motive"); id. at 757 (noting that "as it was desired by a great number of the people of America, padison] would consent to it, though he was not convinced it was absolutely necessary"); id. at 758 (regardinghis draft of the Establishment Clause, "Whether the words are necessary or not, [Madison] did not mean to say, but they had been required by some of the State Conventions . . . ."). 75 See, e.g., id at 450 ("[Wle must feel for the constitution itself, and make that revisal a moderate one."); id. at 800 ("Mr. MADISON willing to make every amendment that was was required by the States, which did not tend to destroy the principles and the efficacy of the constitution . . . .").
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Second, Madison repeatedly reminded his colleagues of his - and their7'jobligation to abide by the Gentlemen's Agreement. He recounted the circumstances and expectations under which the Constitution had been ratified and the terms necessary to make it hlly a~ceptable.~~ "I appeal to the gentlemen who have heard the voice of their country," he declaimed, "to those who have attended the debates of the State conventions . . , ."78 Sometimes Madison lapsed into the explicit language of bargain: The acquiescence which our fellow-citizens show under the Government, calls upon us for a like return of moderation. . . . It is to provide those securities for liberty which are required by a part of the community; I allude in a particular manner to those two States that have not thought fit to throw themselves into the bosom of the C~nfederacy.'~ Third, other Congressmen backed Madison by reminding their coinrades of the exigencies of the Gentlemen's Agreement. They described the state of public opiniong0and the resolutions of the ratifying conventions.*' Aedanus Burke of South Carolina, for example, said "[Tlhe people knew, and were sensible, that in ratifLing the present constitution, they parted with their liberties; but it was under a hope that they would get them back again."g2 As time went on, even antiamendment diehards like John Vining of Delaware began to enter into the spirit and seek to satisfy public opinion.83More contract terminology crept into the debate." Fourth, as deliberation proceeded, Madison and other members of Congress reminded the rest of the consequences of failing to approve changes desired by the
76 See, e.g., i .at 44 1 ("1 considered myself bound in honor and in duty to do what I have d done . . . .").See also i .at 448 (imploring Congress to spend time on the matter in fulfilld ment of the people's wishes). 77 See, e.g., i . at 444, 448-49,450, 457, 458, 749; see also i . at 753 ("[Tlhough as d d several States had proposed the number of two hundred, he thought some substantial reason d MADISONsupposed the should be offered to induce the House to reject it."); i .at 789 ("Mr. people would be gratified with the amendment . . . ."). 78 Id.at 775. 79 Id. at 449 (referring to North Carolina and Rhode Island). On the desirability of d satisfying those two states, see i. at 463 (Rep. Elbridge Gerry); see also supra note 50. Id. at 445 (Rep. Alexander White); i .at 466 (Rep. Thomas Sumter). d Id.at 464 (Rep. Elbridge Gerry); i .at 466 (Rep. Thomas Sumter); i.at 757-5 8 (Rep. d d Daniel Carroll); i .at 760 (Rep. Thomas Tudor Tucker); id. at 760 (Rep. Thomas Hartley); d i . at 805 (Rep. Thomas Surnter). d
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Id.at 777. Id.at 760 ("Mr. VINING said, if the thing was harmless, and it would tend to gratify the

States that had proposed amendments, he should agree to it."). 84 E.g., i . at 788 (Rep. Thomas Tudor Tucker) (referring to "expectations" of the d citizenry).

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people.85 Such consequences could include widespread dissatisfaction with, and The suspicion of, the new g~vemment.'~ words of Congressman (and later VicePresident) Elbridge Gerry must have stung: "[Ulnless Congress shall candidly consider the amendments which have been proposed in confidence by the State conventions, federal faith will not be considered very different fiom the punica fides of Carthage."" In that classically-trained era, of course, everyone h e w the treacherous reputation of "Punic faith." Several other Congressmen warned that the state legislatures might seize the initiative by forcing Congress to call a new national convention under the alternative amendment procedures of Article V.88 The ensuing reforms might be more radical than anyone present desired.89 Fifth, as members of Congress debated and altered Madison's proposals, they often referred to what they perceived to be the needs of the Gentlemen's Agreement." In other words, they justified alterations, or opposed alterations, in Madison's draft by arguing that the outcome they sought better met the terms of the public bargain.

11. THE RELIGION TERMS THE GENTLEMEN'S IN AGREEMENT: EXERCISE FREE A. Introduction
The Establishment Clause arose out of what might be called the "religion terms" of the Gentlemen's Agreement. By examining the other religion terms of that Agreement, we can get a better sense of the meaning of the ban on establishments. These terms included the guarantee of free exercise, the requirement that officeholders take oaths, and the ban on religious tests.

B. Reliance of the Policy Against Establishment on the Policy of Free Exercise
Professor Feldman has concluded that those who opposed establishment did so because they saw establishment as a threat to free exercise - in other words, that

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several States, [Congress] shall call a Convention for proposing Amendments . . . ."). 89 See, e.g., ANNALS,supra note 2, at 450 (Rep. James Madison); i . at 446 (Rep. John d d d Page); id. at 462 (Rep. Elbridge Gerry); i . at 466 (Rep. Thomas Sumter); and i .at 787 (Rep. Thomas Tudor Tucker). See, e.g., i . at 748 (Rep. Fisher Ames) (giving his interpretation of public opinion); d id. at 749 (Rep. James Madison) (disagreeing with Ames); i.at 768 (Rep. Elbridge Geny) d (discussing state convention results as reflecting popular opinion); i .at 799 (Rep. William d L. Smith) (advocating an amendment Madison had not proposed as conforming to majority sentiment as reflected in the ratifying conventions).

See, e.g., i . at 444 (Rep. Madison); i . at 786 (Rep. Thomas Tudor Tucker). d d Id. Id.at 462,464. U.S. CONST.art. V ("[Oln the Application of the Legislatures of two thirds of the

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the purpose of the "no establishment" policy was to protect fkee exer~ise.~' The ratification record amply supports this conclusion. That record contains many instances in which the policy against establishments is seen as flowing naturally from the protection of fiee exercise. For example, at the North Carolina ratifying convention, Delegate Samuel Spencer said he "advocate[d] for. . . [the right] of worshipping [sic]God according to the dictates of conscience in particular. He therefore thought that no one particular religion should be e~tablished."'~ the New York ratifying convention, At antifederalist Thomas Tredwell criticized the Constitution, stating, "I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our co~?sciences a religious establishment . . . ."93 Advocates of amendments in by Maryland urged "[tlhat there be no national religion established by law; but that oN persons be equal& entitled to protection in their religious liberty.'q At antifederalist insistence, the Virginia ratifjmg convention included among its proposed amendments a statement "[tlhat religion . . . can be directed only by reason and conviction, not by force or violence; and therefore . . . no particular religious sect or society ought to be favored or established, by law, in preference to Professor Feldrnan's insight is significant for a couple of reasons. First, it tends between the Establishment Clause and the Free to show that the celebrated tension96
Feldman, supra note 2, at 38 1,382434,398402,424; see also ANTIEAU, supra note 2, at 30-3 1. 92 4 ELLIOT'S DEBATES, supra note 2, at 200 (emphasis added). 93 See, e.g., 2 ELLIOTT'SDEBATES, supra note 2, at 399. 94 Id. at 553 (emphasis added). See'also Amendments Proposed by WilliamPaca in the Maryiand Convention, MD. J., Apr. 29, 1788, reprinted in 17 DOCUMENTARY HISTORY, supra note 2, at 2 4 0 4 1. 3 ELLIOT'S DEBATES, supra note 2, at 659 (emphasis added). For similar statements basing disestablishmentarianismon free exercise, see id. at 645 (reporting Zachariah Johnson as saying at the Virginia ratifjmg convention, "If tests were required, and if the Church of England, or any other, were established, I might be excluded from any office under the government, because my conscience might not permit me to take. the test required."); Manasseh Cutler, Sermon (Aug. 24, 1788), reprinted in 18 DOCUMENTARYHISTORY, supra note 2, at 342 ("By the Constitution now established in the United States, religious as well as civil liberty is secured. Full toleration is granted for free inquiry, and the exercise of the rights of conscience. No one kind of religion, or sect of religion, is established as the national religion, nor made, by national laws, the test of truth."); William Pem 11, INDEP. G ~ R Jan. 3, 1788, reprinted in 2 DOCUMENTARY HISTORY, supra note 2, at 1426, 1434-35 (Microform Supp.) (complaining of test laws and state-establishedcreeds as inconsistent with fiee government). % CHEMEFUNSKY, supra note 2, at 1 140-41; see also John E. Joiner, Note, A Page of History or a Volume oflogic?: Reassessing the Supreme Court's Establishment Clause Jurisprudence, 73 DENV.U.L. REV. 507, 507 (1996) ("Engaged in an inherent (and

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Exercise Clauseg7 may be overblown. If the Establishment Clause exists to serve the Free Exercise Clause, then in the event of conflict, the former must yield More importantly for our purposes, the scope of the Free Exercise Clause would tend to define the scove of the Establishment Clause. In particular, if the Free Exercise Clause permits a particular government activity, that fact tends to demonstrate that the Establishment Clause also allows it.

C. Kby A Free Exercise Clause Wm Deemed Necessary
Antifederalists chargedthat the Constitutionwouldgive the federal enough power to interfere with free exercise of religion?' Although one federalist response was to grumble that the charge seemed inconsistent with antifederalist complaintsabout the lack ofa religious t e ~ t , ~ t h e i r defense was that Congress chief necessary) conflict with the Establishment Clause is the Free Exercise Clause . . . ."). The Free Exercise Clause reads, "Congress shall make no law. ..pmhibiting the fiee exercise [of religion] ...."U.S. CONST. amend I. 98 Henry Abbot stated at the North Carolina ratifying convention: Some are ahid, Mr. Chairman, t a , should the Constitution be ht received, they would be deprived of the privilege ofworshipping [sic] God accordingto their consciences, which would be taking h m them a benefit they enjoy undathe present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws hJikgbg their religious h i e s . 4 E I L I O T ' S D B B A T E S , ~ ~ ~See also A Baptist, F%i?&WS J., Jan. 23,1788, 2, at 191. ~ ~ ~ ~ ~ ~ reprinted in 2 DOCU~NTARY HISTORY, note 2, at 1557-58 (Microform Supp.). supra What alarms me most than any thing in the proposed Constitution,is, that we have no s d t y for our religious tenets; our future rulers may, if they please, ader the Mahometan religion, or any other, to be universal on this continent. . . . . . .[at appears to have been an old and deep-laid scheme to make the Episcopal Church the only established and l a d one in the United States; and oblige us to maintain it. Id. See, e.g., 3 EIIIOT'S DEBATES, note 2, at 6 3 5 3 6 (reporting James Innes supra speaking at the Virginia ra convention). [Antifederalists] inform you that Tmh, Jews, IdideIs, Christians, and all other sects, may be Presidents, and command the fleet and army, there being no test to be required; and yet the tyrannical and inquisitorial Congress will ask me, as a private citizen, what is my opinion on religion, and punish me if it does not conform to theirs. I cannot think the gentleman could be serious when he made these repugnant and incompatible objections. Id &e a h AM. MERCURY, 21, 1788, reprinted in 3 DoaJMmTARY HISTORY, Jan. supra note 2, af312 (Minofirm Supp.) (suggesting that antifederalist claims were incompatible).

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would have no authority to regulate religion.lw This latter defense has resurfaced in modem times because advocates of "strict separation" sometimes rely on it. Since, the argument goes, the federal government was to have no authority over religion and the First Amendment restricted rather than expanded federal power, the federal government cannot now have any authority to support or recognize religi~n.'~' The problem with that defense -both for the founding generation and for our own -was, and is, the natural construction of the Constitution itself. At the Virginia ratifylng convention, Governor Edmund Randolph let the feline slip from the sack: in stating that "no power is given expressly to Congress over religion,"lo2he implicitly admitted that Congress would enjoy implied powers on the subject. Those implied powers were, of course, recognized by the Necessary and Proper Clause,lo3 a provision
loo E.g., 4 ELLIOT'S DEBATES, supra note 2, at 208 (quoting Richard D. Spaight, at the North Carolina ratifymg convention as stating, 'No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation."); id. at 300 (Rep. Charles Cotesworth Pinckney) (stating at the South Carolina rati fLing convention that Congress had "no power at all" to interfere in religion); id. at 194 (James Iredell raising the same argument at the North Carolina ratifying convention); 3 ELLIOT'S DEBATES, supra note 2, at 93 (Rep. James Madison) (reiterating the point at the Virginia ratifying convention); id. at 330 (same); Tench Coxe, ' A Freeman," PA. G m m , Jan. 30, 1788, reprinted in 15 DOCUMENTARY HISTORY, supra note 2, at 508 ("Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution."); see also id. at 5 10; Oliver Ellsworth, Landholder IV, CONN. COURANT, Dec. 10, 1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 398,401 ("There is no declaration of any kind to preserve the libem of the press, &c. Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that congress have no power to prohibit either.") (emphasis in original). lo' See, e.g., LEVY, supra note 2, at 83,93; see also id. at 115 ("The fundamental defect of the nonpreferential interpretation is that it results in the unhistorical contention that the First Amendment augmented a nonexistent congressional power to legislate in the field of religion."). One critic of "strict separation" who adopts the same line is Daniel Dreisbach. DREISBACH, supra note 2, at 60 (stating that "matters not explicitly entrusted to the federal government were assumed to be reserved by the individual or by the states," thereby overlooking the grant of implied powers to the federal govemment and inaccurately paraphrasing the Tenth Amendment, which was drafted without the words "explicitly" or "expressly"); see U.S. CONST.amend. X; see also ANNALS,supra note 2, at 454 (Rep. Madison, discussing in the h t Congress the purpose of the Bill of Rights as restricting the power of government). I" 3 ELLIOT'S DEBATES, supra note 2, at 204 (Gov. Randolph, s p e w at the Virginia ratifylng convention; he is reported as having left out the word "expressly" later in the convention) (emphasis added); see also id. at 469 (stating that the Constitution does not allow the government to "take away or impair the freedom of religion"). lo3 This was discussed in the satirical antifederalist letter written by James Bowdoin. James Bowdoin to James de Caledonia,PHILA. INDEP.GAZETTEER, 27,17 88, reprinted Feb.

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Randolph himself had helped draft.lW By virtue of the Supremacy Clause,105 laws adopted pursuant to this implied authority would override state religious guarantees. And, indeed, by any reasonableconstruction,the unamended Constitutionwould give the federal government significant power over religion. Congress would have plenary jurisdiction over the national capital, the antifederalists' hated "Ten Miles Sq~are,"'"~ thus full power to suppress free exercise there.''' Congress would and

in 16 DOCUMENTARY HISTORY, supra note 2, at 240 (referring to ''powers to make all laws which we may think necessary andproper" and "omission of declarations in favor of liberty of conscience. . . .");see also The Cumberland County Petition to the Pennsylvania Convention, Dec. 5,1788, in 2 DOC~ENTARY HISTORY, supra note 2, at 3 10-1 1 (referringto danger in the Necessary and Proper Clause to religious fieedom and advocating a bill of rights, including fkedom of religion). Madison took note of this analysis when introducing and supporting the Bill of Rights. S e ANNALS,supra note 2, at 45556,758; McConnell, supra note 2, at 1478 e (stating that the Necessary and Proper Clause in conjunction with other powers was seen as a way for the new government to influence religion). sek Natelson, Necessary and Proper, supra note 2, at 267-73 (providing a history of this provision). 2 DOCUMENTARY HISTORY,supra note 2, at 392 (John Smilie, speaking at the Pennsylvania ratifying convention). At present there is no security, even for the rights of conscience, and under the sweeping force of the sixth Article [i.e., the Supremacy Clause] every principle of a bill of rights, every stipulation for the most sacred and invaluable privileges of man, are left at the mercy of government. I . See also Philadelphiensis, PHILA. FREEMAN'S Nov. 28, 1787, reprinted in 14 d J., DOCUMENTARY HISTORY, supra note 2, at 253 (referring to danger in the Supremacy Clause to religious fieedom). '06 See U.S. CONST. I, 5 8, cl. 17. art. 107 See, e.g., Letter from Samuel Osgood to Samuel Adams (Jan. 5, 1788), in 15 D~KN~NTARY HISTORY, supra note 2, at 267 ("I wish the Legislature of the united [sic] States to have Ten Miles S q w e -But let the People settled there, have a Bill of Rights. Let them know that they are Freemen -Let them have the Liberty of Speech, of the Press, of Religion . . . ."); c 2 .FARRAM), supra note 2, at 616 (describing proceedings at the $ constitutional convention). Mr. Madison & Mr. Pinkney then moved to insert in the list of powers vested in Congress a power -"to establish an University, in which no preferences or distinctions should be allowed on account of religion." M Wilson supported the motion r Mr Govr Morris. It is not necessary. The exclusive power at the Seat of Government, will reach the object. On the question N. H. no -Mas. no. Cont. divd. Dr. Johnson ay - Mr. Sherman no. N. J -no. Pa ay. Del. no. Md. no. Va. ay. N -C- ay - S -C ay. Geo -no. [Aye&; noes-6; divided-1 .] Id

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enjoy plenary jurisdiction over other federal enclaves,108 considerable authority and over the "Property"and "Territory" of the United States.'* Congress might employ its taxing power110 intrude into religion.' " In the course of regulating the militia,' l2 to the army,l13and the navy,ll4Congress and the President could require Quakers and other conscientious objectors to bear arms11s a potential threat to free exercise.'l6
U.S. CONST. I, 8 8, cl. 17. art. I . art. IV, 9 3, cl. 2. d 'lo Id. art. I, 5 8, cl. 1. 'I' An Old Whig, PHILA. INDEP. GAZE'ITEER, 1,1787, reprintedin 13 DOCUMENTARY Nov. HISTORY, supra note 2, at 540 (positing use of taxation power to affect religion); ANTIEAU, supra note 2, at 145 (reporting that some in the Virginia legislature thought the First Amendment was not sufficiently broad to prevent the federal government from using the taxation and spending powers to favor certain religions); see also HOWE, supra note 2, at 2 1 (stating that Congress could use the tax power to affect religion). Otherwise, however, Howe seems to understate Congress's potential power over religion, stating, 'Turthemore, none of the powers conferred explicitly on Congress could, conceivably,justify a statute making Christianity, or any special variety thereof, the religion of the nation." Id. Perhaps this is technically correct, but a full knowledge of the ratification record shows legitimate fears that the new government could pass such a statute for the District of Columbia and powerfully direct the property, military, Indian relations, and treaty powers to the same end. 'I2 U.S.CONST.art. I, 8, cl. 16. 'I3 Id. cl. 14. Id. Such a possibility was cause for concern in Pennsylvania. See An Old TYhig, PHILA. INDEP. GAZE'ITEER, Nov. 1, 1787, reprinted in 13 DOCUMENARY HISTORY, supra note 2, at 540; 2 DOCUMENTARY HISTORY, supra note 2, at 532 (reporting on a speech by William Findley at the Pennsylvania ratifymg convention);CentinelID, PHILA. MEP. GAZETIEER, Nov. 8,1787, reprinted in 14 D ~ C ~ E N T A R Y HISTORY, supra note 2, at 60 (warning that "as militia you may be made the unwilling instruments of oppression, under the direction of govenunent; there is no exemption upon account of conscientious scruples of bearing arms."); Algernon Sidney II, INDEP. GAZETTEER, 13, 1788, reprinted in 2 DOCUMENTARY Feb. HISTORY, supra note 2, at 1721, 1725 (Microform Supp.) (claiming that under the Constitution, Quakers, "Menonists," and others could be forced to bear arms); see also Philadelphiensis, PHILA. FREEMAN'S Nov. 28, 1787, reprinted in 14 DOCUMENTARY J., HISTORY, supra note 2, at 252. In regard to religious liberty, the cruelty of the new government will probably be felt sooner in Pennsylvania than in any state in the union. The number of religious denominations in this state, who are principled againstfighting or bearing arms, will be greatly distressed indeed. In the new constitution there is no declaration in their favour; but on the contrary, the Congress and President are to have an absolute power over the standing army, navy, and militia; and the president, or rather emperor, is to be commander in chief. Now, I think, that it will appear plain, that no exemption whatever fiom militia duty, shall be allowed to any set of men, however conscientiously scrupulous they may be against bearing a m . Id. (emphasis in original). The issue also showed up outside the Quaker stronghold of Pennsylvania. Several states
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Congress had the power to deal with Indian tribes1" and might use that power to impact religion, as later happened."8 The President and Senate enjoyed an independent treaty power119and might agree with a foreign nation that particular denominations were to be favored within the United States.120 As antifederalists pointed out, international agreements had been used that way before.I2' In sum, the federalist representation that the new government would have no power over religion was inherently less credible than some of their other representations as to limits on federal authority. One could admit that congressional powers could not be stretched to govern land titles, agriculture, or civil justice within existing states,lu while still recognizing a realistic possibility that Congress might suppress fiee exercise in the "Ten Miles Square," draft Quakers, or impose discriminatory taxation. Accordingly, antifederalists mocked the federalist claim that by not granting Congress express power over religion, the Constitution left the matter exclusively

adopted or considered proposed amendments exempting men fiom serving as soldiers if religious principles forbade. See, e.g., 2 ELLIOT'SDEBATES, note 2, at 553 (quoting an supra unsuccessfbl amendment at the Maryland ratifjlng convention that provided, "[tlhat no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier."); 4 ELLIOTT'S DEBATES, supra note 2, at 244 (quoting an adopted amendment at the North Carolina ratifjmg convention that provided "[Tlhat any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead."). 'I6 For legal exemptions for dissenters as an aspect of fiee exercise, see McConnell, supra note 2, at 1466-73. U.S. CONST. I, 5 8, cl. 3. art. "* CORD, supra note 2, at 38-39, 45, 59, 63-70 (discussing various measures for promoting Christianity among the Indians). lL9 U.S. CONST.art. II, 5 2, cl. 2. '1 2 E.g.,4 ELLIOT'S DEBATES, note 2, at 191-92 (quoting Henry Abbott at the North supra Carolina ratifying convention, as stating that "[i]t is feared, by some people, that, by the power of making treaties, they might make a treaty engaging with foreign powers to adopt the Roman Catholic religion in the United States, which would prevent the people fiom worshipping God accordingto their own consciences."); see also 2 DOCUMENTARY HISTORY, supra note 2, at 514 (quoting Robert Whitehill) (warning at the Pennsylvania ratifjlng convention that "[tlreaties may be so made as to absorb the liberty of conscience, trial by jury, and all our liberties."). 121 Hampden, P ~ S B U R GGAZETTE,Feb. 16, 1788, reprinted in 2 Do~~&~ENTARY H HISTORY, supra note 2, at 666 ("Treaties may be extended to almost every legislative object of the general government. Who is it that doth not know that by treaties in Europe the succession and constitution of many sovereign states hath been regulated."). Charles I1 who reigned fiom 1660 to 1685 w s in the pay of the king of France and was more obliging to a English Catholics for that reason. I* See supra note 46 and accompanying text.

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to the states. Reflect back to the Virginia ratifylng convention, when the stupendous Patrick Henry, orator extraordinaire and scourge of the proposed Constitution, held the floor:

f
t

Wherefore is religious liberty not secured? . . . There is many a religious man who knows nothing of argumentativereasoning, there are many of our most worthy citizens who cannot go through all the labyrinths of syllogistic, argumentative deductions, when they think that the rights of conscience are invaded. This sacred right ought not to depend on constructive, logical reasoning. 123
And again:

That sacred and lovely thing, religion, ought not to rest on the ingenuity of logical deduction. Holy religion, sir, will be prostituted to the lowest purposes of human policy. What has been more productive of mischief among mankind than religious disputes? Then here, sir, is a foundation for such disputes, when it requires learning and logical deduction to perceive that religious liberty is secure.'24

'23 3 ELLIOT'S DEBATES, supra note 2, at 317 (quoting Patrick Henry); see also 2 DOCUMENTARY HISTORY, supra note 2, at 592 (quoting John Smilie at the Pennsylvania

ratifylng convention as similarly arguing "Powers undefined are extremely favorable for the increase of power."); Cincinnahrs 1 1 To James Wilson, Esquire, N.Y. J., Nov. 15, 1787, 1: reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 125. In equal insecurity, or rather equally at mercy, are we left as to liberty of conscience. We find nothing that regards it, except the following; -"but no religious test shall ever be required as a qualification to any office or public trust under the United States." This exception implies, and necessarily implies, that in all other cases whatever liberty of consciencemay be regulated. For, though no such power is expressly given, yet it is plainly meant to be included in the general powers, or else this exception would have been totally unnecessary For why should it be said, that no religious test should be required as a qualification for ofice, if no power was given or intended to be given to impose a religious test of any kind? Id. See also Philadelphiensis, PHILA. FREEMAN'S Nov. 28, 1787, reprinted in 14 J., DOCUMENTARY HISTORY, supra note 2, at 253 ("Since, in the new constitution no provision is made for securing to these peaceable citizens their religious liberties, it follows then by implication, that no such provision was intended."). '24 3 ELLIOT'S DEBATES, supra note 2, at 3 18 (remarks of Patrick Henry).

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I trust that gentlemen,on this occasion, will see the great objects of religion, liberty of the press, trial by jury,interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper [the Constitution]. These most important human rights are not protected by [Article I, Section 9],12' which is the only safeguard in the Constitution. My mind will not be quieted till I see something substantial come forth in the shape of a bill of rights.'26 Henry was only one of many to demand a shield for free exercise. Similar demands came from all throughout the country127 and even fiom outside, for Thomas -

U.S.CONST. I, § 9 (limiting the powers of the federal government). art.
3 ELLIOT'S DEBATES,supra note 2, at 462 (remarks of Patrick Henry). This was one of the most common demands for amendment - so common that exhaustive citation would be as tedious as impossible. Thus, a newspaper article satirizing antifederalist arguments was entitled "Receipt Becipe] for an Antifederalist Essay," and included the following ingredients, among others: "WELL-BORN, times -Aristocracy, nine f eighteen times -Liberty o the Press, thirteen times repeated -Liberty of Conscience once . . . ."A Receiptfor an AntifederalistEssay, PENN.GAZETTE, 14,1787, reprinted in 14 Nov. DOCUMENTARY HISTORY, supra note 2, at 103. The following are a few serious examples, categorized by state: MASSACHUSE~S: BOSTONINDEP. CHRON.,Dec. 6, 1787, reprinted in 14 '2," ~ A R HISTORY, Y supra note 2, at 358, 359 (demanding reservation of "rights of conscience" to avoid establishment of a national church); Mercy Warren, A Colurnbian Patriot, Observations on the Constitution (Feb. 1788), reprin~ed 16 DOCUMENTARY in HISTORY, supra note 2, at 279 (criticizing the Constitution because "[tlhere is no security in the profered [sic] system. . . for . . . the rights of conscience.*'). NEW YORK:see Brutus I., N.Y. J., Nov. 1, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 525 (arguing that the right of conscience is an inalienable right). PENNSYLVANIA: ?ke Dissent o the Minority o the Pennsylvania Convention, PENN. see f f PACKET (Dec. 18,1787), in 15 DOCUMENTARY HISTORY, supra note 2, at 18 (proposing as an amendment that "[tlhe right of conscience shall be held inviolable; and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the HISTORY, supra preservation of liberty in matters of religion."); see also 2 DOC~ENTARY note 2, at 399, 459, 592 (quoting various remarks of John Smilie); id. at 400 (quoting remarks of Robert Whitehill) ("Have we a right to give away the rights of conscience?"); id. at 597 (setting forth the text of Whitehill's proposed amendment protecting freedom of conscience); CentinelU,PU FREEMAN'S Oct. 24, 1787, reprinted in 13 D ~ C ~ E N T A R Y J., HISTORY supra note 2, at 466; An Old Whig, P m . INDEP. 457, GAZETTEER, 1,1787, Nov. reprinted in 13DOCUMENTARY HISTORY supra note 2 at 53941;A Baptist, FREEMAN'S 538, J., Jan. 23, 1788, reprinted in 2 DOCUMENTARY HISTORY, supra note 2, at 1557, 1558 (Microform Supp.) (calling for alteration in the Constitution to protect free exercise and
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Jefferson, who had not otherwise been involved in the debate, wrote fkom France to urge amendment as well.12* Madison and a few other hard-pressed federalists at the Virginia convention asserted that explicit protection for religion was unnecessary because America's variety of sects would prevent any of them fiom becoming too strong. But this religious adaption of Madison's famous theory of factions12g carried no weight outside his immediate sphere of influence. So the federalists were left with no choice but one: assent to a term in the Gentlemen's Agreement for an amendment to protect fiee exercise.
D. What Did the Founding Generation Mean by "FreeExercise"?

By the phrase "free exercise," the founding generation appears to have meant fieedom of religion for all theists, not just Christians; but not the fkeedom from religion sought by atheists and agnostics. To demonstrate the point, let us begin
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against an established church). VIRGINIA: 13 DOCUMENTARY see HISTORY, supra note 2, at 239 (quoting Richard Henry Lee's proposal "[Tlhat 'the new Constitution proposed for the Government of the U. States be bottomed upon a declaration, or Bill of Rights, clearly and precisely stating the principles upon which this Social Compact is founded, to wit; That the rights of Conscience in matters of Religion shall not be violated . . .."'); see also Richard Henry Lee to Governor Edmund Randolph, PETERSBURG G VA. ,Oct. 16, 1787, reprinted in 14 DOCUMENTARY supra note 2, at 368; Richard Henry Lee to Samuel Adarns (Oct. 27, 1787), in 13 HISTORY, DO~MENTARY HISTORY, supra note 2, at 485 ("But they have no reservation in favor of the Press, Rights of Conscience . . . ."). 128 Thomas Jefferson to James Madison, Dec. 20, 1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 482-83: I will now add what I do not like, first the omission of a bill of rights providing clearly & without the aid of sophisms for fieedom of religion. . . to say, as mr Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the Audience to whom it was addressed, but is surely a gratis dictum, opposed by strong inferences fiom the body of the instrument, as well as fiom the omission of the clause of our present confederation which had declared that in express terms. Id. (citation omitted). See also Letter fiom Thomas Jefferson to William Stephens Smith (Feb. 2, 1787), reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 500 (advocating a bill of rights with protection for religion). ' 2 9 3 ELLIOTT'S DEBATES, supra note 2, at 93, 330 (James Madison, speaking at the Virginia ratifying convention); id. at 204 (Edrnund Randolph, speaking at the same convention); id. at 645 (Zachariah Johnson, speaking at the same convention); see also Letter from James Madison to Thomas Jefferson (Oct. 24 & Nov. 1, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 442,44849 (elaborating on the same theory). For relevant passages in THEFEDERALIST PAPERS, THEFEDERALISTNO.(James Madison), see 10 supra note 2, at 4 5 4 6 . See also THEFEDERALIST 5 1, supra note 2, at 270-71. No.

with Oliver Ellsworth -a man little known today, but among the most significant of the founders. Ellsworth was a lawyer and a judge, and he enjoyed the largest private practice in Connecti~ut."~ served as a delegate to the federal convenHe tion, where he was one of only five members on the Committee of Detail - the In committee that produced the first draft of the fmal do~ument.'~' 1796, President Washington appointed him Chief Justice of the United States Supreme Court.')' Ellsworth supported ratification through his influential "Landholder" essays, written for Connecticut but published more widely.") In one of those essays, he addressed complaints about the lack of a religious test.lY In the course of a declamation on the futility of religious tests and the risk that they might be used for religious persecution, he wrote:

If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office, to declare, at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures. In favour of such a test, it may be said, that one who believes these great truths, will not be so likely to violate his obligations to his country, as one who disbelieves them; we may have greater confidence in his integrity.')'
Ellsworth then discussed the limits of government: But to come to the true principle, by which this question ought to be determined: The business of civil government is to protect the citizen in his rights, to defend the community fiom hostile powers, and to promote the general welfare. Civil government has no business to meddle with the private opinions of the people. If I demean myself as a good citizen, I am accountable, not to man, but to God, for the religious opinions which I embrace, and the manner in which I worship the supreme being. lf6
- - - --

'O For a short biography of Oliver Ellsworth, see Biographical Directory of the United States Congress, available at http://bioguide.congress.gov/scripts/biodisplay.pl?~dex= E000147 (last visited Aug. 28,2005) [hereinafter Biographical Directory]. 13' See Natelson, Necessary and Proper, supra note 2, at 270-73. See Biographical Directory, supra note 130. 13' See 14 DOCUMENTMY HISTORY,supra note 2. Id. at 450. I s 14 DOCUMENTARY HISTORY, supra note 2, at 450. 13' Id. at 45 1 (emphasis added).

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The italicized language makes Ellsworth sounds like a strict separationist, although that sits oddly (to modem minds) with the reference to God. Here is additional
But while I assert the right of religious liberty; I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and public detriment. For this reason, I heartily approve of our laws against d mkenness, profane swearing, blasphemy, and professed a?heism.l3' Thus, in Ellsworth's view, government should not meddle with religion, but should not tolerate atheism. Ellsworth's outlook was entirely typical. In 1986, Professor Philip Kurland, one of the nation's most distinguished constitutional historians, summarized the evidence as follows: [Clontemporary thinkers relied on God's will to justify nondiscrimination among any who worshiped a single god. Deists, Jews, and Mahometans came with the announced protection of religious fieedom, but I am hard put to find any evidence in the development of legal protection for religious fieedom that indicates any intention to protect atheists."* More recently, Professor Noah Feldman elaborated: the contemporary justification of "free exercise" or "freedom of conscience" depended on religious belief. Developed over the years by John Locke and many others, the justification was that the conscience belonged to God, and that it was an act of impiety for civil government to impede upon the judgment of conscience as to how to worship God.'3g
Id. Kurland, supra note 2, at 856. '39 Feldman, supra note 2, at 355-79,390; see also 2 ELLIOT'S DEBATES, supra note 2, at 120 (Rev. Phillip Payson speaking at the Massachusetts ratifying convention). The great object ofreligion being God supreme, and the seat of religion in man being the heart or conscience, i. e., the reason God has given us, employed on ow moral actions, in their most important consequences, as related to the tribunal of God, hence I infer that God alone is the God of the conscience, and, consequently, attempts to erect human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. Upon these principles, had there been a religious test as a qualification for office, it would, in my opinion, have been a great blemish upon the instrument.
13'
138

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Because, however, this justification presupposed a desire to worship God, the immunity did not extend to one who denied God. It most certainly did not contemplate protection for atheism nor, by implication, a g n o s t i c i ~ r n . ' ~ ~ Id. See also PENN.PACKET, Jun.3, 1788, in 18 DOCIJMENTARY HISTORY, supra note 2, at 150. The freedom of its religion, which permits every man to worship his God in the manner most agreeable to his conscience -That tolerating spirit of religious Ereedom, which tramples upon fanaticism and persecution, and renders mankind fiends to Heaven and earth - to God, as their universal father - to man, as their brother . . . . Id. See also Centinel11,PHILA. FREEMAN'SJ., Oct. 24,1787, reprinted in 13 D O C ~ A R Y HISTORY, supra note 2, at 466 (complaining that "there is no declaration, that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding."); An Old Whig, PHILA. INDEP. GAZETTEER, 1, Nov. 1787,reprinted in 13 D O C ~ E N T A HISTORY, RY supra note 2, at 540 (referring to "the sacred rights of conscience"); Timothy Meanwell, PHILA.INDEP. GAZETTEER, Oct. 29, 1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 51 1 ("I should have liked the constitution much better if our fiiends of the Convention had inserted the 2d article of the Bill of Rights prefixed to the Constitution of Pennsylvania. - 'That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own conscience and understanding . . . .'"); 9 DOCUMENTARY HISTORY, supra note 2, at 772 (quoting the "Society of Western Gentlemen" as stating "[tlhat the duty of worshipping [sic] Almighty God, of enquiring after, and possessing the truth, according to the dictates of conscience, is equally incumbent on all mankind"). Apparently, Jefferson was one of the few who dissented from this justification for free exercise, basing it on libertarian grounds instead. McConnell, supra note 2, at 1451. '40 Feldman, supra note 2, at 376,425. Even the very few who favored complete toleration did so in an atmosphere of contempt for atheism. See Alihu, AM. MERCURY, Feb. 18, 1788, reprinted in 3 DOCUMENTARY HISTORY, supra note 2, at 591-92. Should any body of men, whose characters were unknown to me, form a plan of government, and prologue it with a long pharisaical harangue about God and religion, I should suspect a design to cheat and circumvent us . . . . There must be (tis objected) some proof, some evidence that we the people acknowledge the being of a God. Is this a thing that wants proof? Is this a thing that wants constitutional establishment in the United States? It is almost the only thing that all universally are agreed in; everybody believes there is a God; not a man of common sense in the United States denies or disbelieves it. Thefool hath said in his heart there is no God, but was there ever a wise man said such a thing? No, not in any age or in any country. Besides, if it was not so, if there were unbelievers, as it is a matter of faith, it might as well be admitted; for we are not to bind the consciences of men by laws or constitutions. . . . Such an acknowledgment is moreover useless as a religious test -it is calculated to exclude from officefools only, who believe there is no God; and the people of America are now become so enlightened that no fool hereafter (it is hoped) will ever be promoted to any ofice or high station.

In their book, The Godless Constitution, Professors Isaac Kramnick and Re Lawrence Moore14' rely on Locke's Letter Concerning Toleration to support their argument fiat the Constitution creates no preference for religion,142 F O their ~ argument Locke was an unfortunate choice* In fact, Locke flatly refused to extend toleration to atheists:
Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence [sic] of religion whereupon to challenge the privilege of a t01eration.l~~ ~ h u sno matter how unsettling it may be to modem sensibilities (including my , own), the historical record is free from reasonable doubt: The founding generation saw freedom of religion as dependent on faith in God and would have viewed freedom of religion for atheists O agnostics as a contradiction in t e r n . The idea r of free exercise was freedom OF religion not freedom FROM religion. ~ f as , concludedabove, the Establishment Clause rested on contemporary notions of free exercise, then the Establishment Clause must not have prevented governmental sponsorship of religion in general.

The Constitution's ban on religious testsiu -which bears an obvious subjectmat-er relationship to the First Amendment'sban on religious establishments-and its requirement for the oath-taking'45 were not amended by the Bill o f ~ i ~ ~~ .t h , however, were among the "religion t e r n " ofthe Gentlemen's Agreement.
~ d(internal quotation marks omined). 141 MCK & MOORE,supra note 2. 142 Id. at 74-78. JOHN TREATISE ON G ~ ~ ~ A LETTER CON^^ A N D (Charles L. Shed, 1965) (1689)14.4 This was proposed at the national convention by Charles Pinchey of south Carolina, See 2 FARRAND,supra note 2, at 335 ('wO religious test Or qualificationshall ever be annexed to any oath of office Under the authority of the United States . . . ."); see also id. at 461,468. See U.S. CONST. art. VI,cl. 3 ('me Senators and Representatives.., and the Members of the several State Legislames, and all executive mdjudicial Officers, both of the United States and of the several States, shall be bound by Oath or rnrmation, to suppofi this Constimtion . . . ."); see also id. art. I , § 3, cl. 6; id. art. U, 5 1, cl. 9.

The ban on religious tests provoked considerable discussion during the ratification debates. Most of the participants in those debates believed that free government worked best when those holding positions of public trust were committed to moral principles.14 Because devotion to one specific religion Christianity -was seen as a particularly good assurance of moral c ~ n d u c f ' ~ ' the states limited participation in public life to Christians.14' Thus, the ban on religious between government tests became an issue because it arguably broke the c o ~ e c t i o n service and religion and morality. Antifederalistsemphasized that the Constitution would permit non-christians (or Catholics"') to serve in federal office, a development they claimed could undermine public virtue and lead to official corruption.150
"6 See, e.g., 2 ELLIOT'SDEBATES, supra note 2, at 171-72 (quoting Charles Turner as stating at the Massachusetts ratifylng convention, "The world of mankind have [sic] always, in general, been enslaved and miserable, and always will be, until there is a greater prevalence of Christian moral principles . . . ."). The point is developed at greater length in HAMBURGER, supra note 2, at 66-73. '1 4 4 ELLIOT'S DEBATES, supra note 2, at 199 (quoting David Caldwell as claiming at the North Carolina ratifylng convention that "even those who do not regard religion, acknowledge that the Christian religion is best calculated, of all religions, to make good members of society, on account of its morality."). 14* See, e.g., DEL CONST. 1776, art. 22. of Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:

.,.. . . . "I, A B. do profess faith in God the Father, and in Jesus Christ His
only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledgethe holy scriptures of the Old and New Testament to be given by divine inspiration."

Id
Pennsy1vania required the following oath: " do believe in one God, the creator and I governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration." PA CONST.of 1776 g 10. See, e.g., 2 ELLIOT'S DEBATES, supra note 2, at 148 (noting that Major T. Lusk argued at the Massachusetts ratifying convention against the Constitution because it sanctioned slavery and because '%e shuddered at the idea that Roman Catholics, Papists, and Pagans might be introduced into office, and that Popery and the Inquisition may be established in America."). lS0 For example, see the following comments: CONNECTJCUT: MERCURY, 2 1,1788, reprinted in 3 DOCUMENTARY AM. Jan. HISTORY, supra note 2, at 3 12,313 (Microform Supp.) ("The fears of many good and worthy men, men of principle and honor, are alarmed, lest soon the high departmen& of the nation should be filled with men of loose principles or no principles at all, as to religion.") (emphasis in original). MASSACHUSETTS: 2 ELLIOT'S DEBATES, supra note 2, at 118 (reporting that at the

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Massachusetts ratifying convention: [Sleveral gentlemen urged that it [the lack of a religious test] was a departure from the principles of our forefathers, who came here for the preservation of their religion; and that it would admit deists, atheists, &c.,into the general government; and, people being apt to imitate the examples of the court, these principles would be disseminated, and, of course [i.e., necessarily], a corruption of morals ensue.). See also id. at 119: Col. [William] JONES (of Bristol) thought, that the rulers ought to believe in God or Christ, and that, however a test may be prostituted in England, yet he thought, if our public men were to be of those who had a good standing in the church, it would be happy for the United States, and that a person could not be a good man without being a good Christian. See also id. at 44 (noting that Amos Singletary at the Massachusetts ratifying convention "thought we were giving up all our privileges, as there was no provision that men in power should have any religion; and though he hoped to see Christians, yet, by the Constitution, a Papist, or an Infidel, was as eligible as they."). MARYLAND: Luther Martin, Genuine Information X71, BALT.MD. GAZETTE, 8, Feb. 1788, reprinted in 16 DOCUMENTARY HISTORY, supra note 2, at 89. The part of the system, which provides that no religious test shall ever be required . . . was adopted by a very great majority of the convention, and without much debate, - however, there were some members so unfmhionable as to think that a belief of the existence of a Deity, and of a state offuture rewarh andpunishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinctionbetween the professors of Christianity and downright infidelity or paganism. id. (footnote omitted). NORTHCAROLINA: the North Carolina ratifjring convention, William Lancaster At supported a religious test and cautioned his fellow delegates: But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not lcnow how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it. There is a disqualification, I believe, in every state in the Union - it ought to be so in this system. supra note 2, at 2 15. See also id. at 192 (quoting Henry Abbot as 4 ELLIOTT'S DEBATES, pointing out at the North Carolina ratifying convention that "[tlhe exclusion ofreligious tests is by many thought dangerous and impolitic. They suppose that if there be no religious test required, pagans, deists, and Mahometans might obtain offices among us, and that the senators and representatives rnight all be pagans."); id. at 198-99 (Gov. Samuel Johnson) (summarizing, as a federalist, the antifederalist arguments at the North Carolina ratifj6ng convention); id. at 199 (Rev. David Caldwell, also speaking at the North Carolina ratifying convention). VIRGINIA: X I , Jan. 12,17 88, reprinted in 17 DOCUMENTARY Letter HISTORY,supra note 2, at 3 10-1 1. Writing in opposition to the Constitution, the author pointed out, that under it,

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Federalists responded in various ways. Part of their defense was that religious tests were impious for the same reason as government interference with fiee exercise was impious - they intruded on the conscience, God's domain."' Additionally, they pointed out that religious tests were largely ineffective or counterproductive. Illustrating this response was a speech delivered at the Massachusetts ratifying convention by the celebrated Reverend Theophilus Parsons: It has been objected that the Constitution provides no religious test by oath, and we may have in power unprincipled men, atheists and pagans. No man can wish more ardently than I do that all our public offices may be filled by men who fear God and hate wickedness;but it must remain with the electors to give the government this security. An oath will not do it. Will an unprincipled man be entangled by an oath? Will an atheist or a pagan dread the vengeance of the Christian's God, a being, in his opinion, the creature of fancy and credulity? It is a solecism

it can be no objection to the elected, that they are Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not: Hence many men may be elected, who cannot be electors. Gentlemen who have commented so largely upon the wisdom of the constitution, for excluding fiom being elected young men under a certain age, would have done well to have recollected, that it positively makes pagans, convicts, kc. eligible.

Id.

On the perceived connection between state support of religion and morality, see Feldrnan, supra note 2, at 394-95. IS' 2 ELLIOT'S DEBATES, supra note 2, at 148 (Rev. Isaac Backus, stating at the Massachusetts ratifjrlng convention, "[Rleligion is ever a matter between God and individuals; and, therefore, no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ."); 2 DOCUMENTARY HISTORY, supra note 2, at 457 (reporting the comment of Benjamin Rush at the Pennsylvania ratifying convention that "[iln marking the advantages which are secured to us by the new government, the Doctor principally enforced the following: . . . that religious tests would be abolished . . . The Doctor concluded an animated speech by holding out the new Constitution as pregnant with an increase of freedom, knowledge, and religion."); Tench Coxe, An American Citizen IV: On the Federal Government, Oct. 2 1,1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 432. No religious test is ever to be required of any officer or servant of the United States. . . .No such impious deprivation of the rights of men can take place under the new foederal [sic] constitution. The convention has the honor of proposing the first public act, by which any nation has ever divested itselfof a power, every exercise of which f is a trespass on the Majesty o Heaven. Id. (emphasis in original).

.

OMGINAL MEANING ESTABLISHMENT OF CLAUSE in expression. No man is so illiberal as to wish the confining places of honor or profit to any one sect of Christians; but what security is it to government, that every public officer shall swear that he is a Christian?'For what will then be called Christianity? One man will declare that the Christian religion is only an illumination of natural religion, and that he is a Christian; another Christian will assert that all men must be happy hereafter in spite of themselves; a third Christian reverses the image, and declares that, let a man do all he can, he will certainly be punished in another world; and a fourth will tell us that, if a man use any force for the common defence [sic], he violates every principle of Christianity. Sir, the only evidence we can have of the sincerity of a man's religion is a good life; and I trust that such evidence will be required of every candidate by every elector. That man who acts an honest part to his neighbor, will, most probably, conduct honorably towards the

105

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The possible variations on the term "Christian" listed in this quotation suggest a third line of response: that theism in general was an adequate predictor of virtue, especially theism of the sort involving a just God (or gods) and a future state of rewards and punishments. It followed that a more exacting test was unnecessary, and being unnecessary, interfered with fiee exercise.I5) Of course, atheists were not
'51 2 EUIOT'SDEBATES, supra note 2, at 90. In Massachusetts, ministers took the lead in arguing against religious tests. See also id. at 118-1 9 (remarks of Rev. Daniel Shute, speaking at the Massachusettsratifjmg convention); id. at 120 (Rev. Phillips Payson) (same convention). For other discussions of the impracticality .of religious tests, see 4 ELLIOTT'S DEBATES, supra note 2, at 192-93 (James Iredell, speaking at the North Carolina ratifying convention); id. at 200 (Samuel Spencer) (same); Alihu, AM. MERCURY, Feb. 18, 1788, reprinted in 3 DOCUMENTARY HISTORY, supra note 2, at 592 ("Such an acknowledgment [of theism] is moreover useless as a religious test -it is calculated to exclude fiom officefools only, who believe there is no God; and the people ofAmerica are now become so enlightened that no fool hereafter (it is hoped) will ever be promoted.to any office or high station,"); Oliver Ellsworth, The Landholder, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 45 1 ("In short, test-laws are utterly ineffectual; they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences."); Letter from James Madison to Edmund Pendleton (Oct. 28, 1787), in 13 DOCUMENTARY HISTORY, supra note 2, at 504 ("If the person in question be an unbeliever in these points and would notwithstanding take the oath, a previous test could have no effect. He would subscribe it as he would take the oath, without any principle that could be affected by either."). lS3 15DOCUMENTARY HLISTORY, supra note 2, at 3 16(Dep.-Gov. Oliver Wolcott, reported as stating that a religious test would '%e exceedingly injurious to the rights of free citizens

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protected from a test of theism for the same reason they were not protected by provisions guaranteeingfiee exercise. An atheist was seen as entitled to no freedom of conscience because he had expelled God from that con~cience.'~' Supporting a broadly theistic view was the fact that most educated members of the founding generation had read C i c e r ~ , and thus h e w that the good moral '~~ character necessary for fiee government could come from religious sources that As were neither Christian nor even monothei~t.'~~stated by Daniel Shute, another minister at the Massachusetts ratifying convention: Far from limiting my charity and confidence to men of my own denomination in religion, I suppose, and I believe, sir, that there are worthy characters among men of every denomination among the Quakers, the Baptists, the Church of England, the Papists; and even among those who have no other guide, in the way to virtue and heaven, than the dictates of natural religion.15'

.. . ."); Dentatus, INDEP. GAZETTEER, 8, 1788, reprinted in 2 DOCUMENTARY Jan. HISTORY, supra note 2, at 144142 (Microform Supp.) (complaining of test laws as inconsistent with free exercise). ' ~ 4See supra Part 1 . . 1D Is5 See CARL RICHARD, J. THEFOUNDERSAND THE CLASSICS: GREECE, ROME,AND THE AMERICAN ENLIGHTENMENT ( 1994). 19 lS6 See Marcus Tullius Cicero, De Natura Deorum, in DENA'IZTRA DEORUM ACADEMICA, 6 (H. Rackham trans.,G.P. Putnam's Sons 1933) (stating that if religion and holiness are taken out of public life, 'Perturbatio vitae sequitur et magna confusio, atque haut scio an pietate adversus deos sublataJides etiam et societas generis humani et una excellentissima virtus iustitia tollatur," which I have translated as "a great upset of life follows and great confusion; and I don't quite h o w that if piety toward the gods is taken away whether faith and comradeship among the human race and one great moral quality, justice, wouldn't be lost"). In Omichund v. Barker, Willes 538, 125 Eng. Rep. 1310 (1744), a famous case referenced by James Iredell at the North Carolina ratiflmg convention, see infia note 175 and accompanying text, the court had referred generally and extensively to non-Christian sources, and particularly to Cicero, to illustrate the binding effect of an oath among all theists. Id., Willes at 54547, 125 Eng. Rep. at 1314. 'I s 2 ELLIOT'S DEBATES, supra note 2 , at 119. See also 4 ELLIOT'S DEBATES, supra note 2, at 197 (quoting James Iredell, as stating at the North Carolina ratifying convention that "[mlen at length considered that there were many virtuous men in the world who had not had an opportunity ofbeing instructed either in the Old or New Testament, who yet very sincerely believed in a Supreme Being and in a future state of rewards and punishments."); Tench Coxe, An American Citizen IV: On the Federal Government, Oct. 21, 1787, in 13 DOCUMENTARY HISTORY, supra note 2, at 432 ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise and good citizen in the execution of the various duties of the government.") (emphasis in original).

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107

Thus, the key to moral conduct was not belief in a particular religion, but belief in divinity. Reverend Shute's concession to adherents of "natural religion" (deism) shows that in his view the divinity need not even be a personal God responsible for a future state of rewards and punishments. Other advocates of the theistic view did not go quite so far. Chancellor Edrnund Pendleton, a key Virginia federalist and president of his state's ratifjmg convention, thought at least a belief in future judgment was necessary.158James Iredell, the federalist floor leader at the North Carolina convention, held a similar view.'" But the general idea was that tbeism, and not specifically Christianity, was sufficient. One federalist wag satirized antifederalist religious parochialism in this way: [The Constitution] admits to legislation, 1st. Quakers, who will make the blacks saucy, and at the same time deprive us of the mean of defence [sic] -2dly. Mahometans, who ridicule the doctrine of the trinity -3dly. Deists, abominable wretches 4thly. Negroes, the seed of Cain -5thly. Beggars, who when set on horseback will ride to the devil - 6thly. Jews, &c. &c. It gives the command of the whole militia to the President - should he hereafter be a Jew, our dear posterity may be ordered to rebuilt ~erusalem.'~
See Letter fiom Edmund Pendleton to James Madison (Oct. 8, 1787), reprinted in 10 DOCUMENTARY HISTORY, supra note 2, at 1774. My last Criticism you will probably laugh at, tho' it is really a Serious one wth. me. why require an Oath From Public Officers, and yet interdict all Religious Tests, their only Sanction? Those hitherto adopted have been narrow & illiberal, because designed to preserve Established modes of Worship; But since a belief of a Future State of Rewards & Punishments, can alone give consciensious [sic] Obligation to Observe an Oath, It would seem that Test should be required or Oaths Abolished. Id. 4 ELLIOT'S DEBATES, supra note 2, at 197-98. CurtiopoZis, N.Y. DAILY ADVERTISER, Jan. 18, 1 788, reprinted i 15 D O C U M E ~ A R Y n HISTORY, supra note 2, at 40 1. In Pennsylvania, an anonymous federalist author attacked named antifederalists for supporting test laws that excluded even some Christians fiom government. See A Citizen o f Philadelphia, PENN. GAZETIE,Jan. 23, 1787, reprinted in 2 D~)CUMNTARY HISTORY, supra note 2, at 658. In the list of the signers of the protest of the minority of the Convention against the Federal Constitution, we find six (and three of them the only speakers against it in the Convention) whose names are upon record as the friends ofpaper money, and the advocates for the a late unjust test lw of Pennsylvania, which for near ten years excluded the Quakers, Mennonists, Moravians, and several other sects scrupulous

Finally, federalists responded that if one believed religious tests to be effective, then one should be comforted because the Constitution already contained a test of theism in its requirement that officeholders take oaths.16' Early in the ratification process, Madison made this point in a letter to Virginia's Chancellor Edmund Pendleton: "Is not a religious test as far as it is necessary, or would operate, involved in the oath itself?"16*Deputy-Governor Oliver Wolcott relied on the same argument in support of the Constitution at the Connecticut ratifying convention.163 The South Carolina convention even proposed an amendment to codify this understanding,'" as did Virginia's Society of Western Gentlemen:

against war, from a representation in our government. . . . The persons are William Findley, John Smilie, Robert Whitehill,Adam Orth, Nicholas Lutz, A braham Lincoln. In the 302d page of the same book, we find a report declaring the Quakers, Moravians, etc. who, from conscientious scruples, decline taking part in the war, to be "enemies to liberty and the rights of mankind. . ." which report is agreed to, as appears in the list of the yeas, by the same William Findley, John Smilie, Robert Whitehill, Adam Orth, Nicholas Lutz, Abraham Lincoln. These men certainly are not in earnest when they talk and write of liberty and of the sacred rights of conscience. Id. (footnote omitted) (emphasis in original). 16' The requirement for oaths to support the Constitution came from the Virginia Plan. See 1 FARRAND, supra note 2, at 22 (May 29, 1787) (''Resd. that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union[.]"). Among federal convention debates, see also id. at 122,203-04; 2 FARRAND, supra note 2, at 84; id. at 87 ("Mr. Wilson said he was never fond of oaths, considering them as a left handed security only. A good Govt. did not need them. and a bad one could not or ought not to be supported."). '62 Letter from James Madison to Edrnund Pendleton (Oct. 28, 1787), reprinted in 13 D O C U M E ~ AHISTORY, note 2, at 504. RY supra 163 Oliver Wolcott, Speech in the Connecticut Convention (Jan. 9, 1788), in 15 DOCUMENTARY HISTORY, supra note 2, at 3 16 ("I do not see the necessity of such a Test as some gentlemen wish for. The constitution enjoins an oath upon all the Officers of the United States. This is a direct appeal to that God who is the avenger of pejury. Such an appeal to him is a full acknowledgment of his being and providence. An acknowledgment of these great truths is all that the gentlemen contend for.") (footnote omitted). See 18 DOCUMENTARY HISTORY, supra note 2, at 72 ('Resolved, That the 3d section of the 6th article ought to be amended, by inserting the word other between the words no and religious.") (emphasis in original). That the South Carolina resolution was a codification rather than a substantive change was publicized at the time. Roger Sherman,A Citizen ofNav Haven, N.Y.PACKET, Mar. 24,1789, reprinted in CREATINGTHE BILLOF RIGHTS, supra note 2, at 222 ("The amendment proposed by the Convention of South-Carolina, respecting religious tests, is an ingenious one, but not very important, because the Constitution as it now stands, will have the same effect, as it would have with that amendment."); seealso ANTIEAU, supra note 2, at 106, 117 (discussing the reason for this proposed amendment).

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[Flor the more general diffusion of benevolence, hospitality, and undissembled honesty, among all ranks of people, the fiee exercise and enjoyment of religious profession, and worship withoutpreference, shall forever hereafter be allowed within the United States. . . . . [BJut no other religious Test shall ever be required . . . than a belief in the one only true God, who is the rewarder o f the good, and the punishment o the evil.16' f

The view that oaths and theism were necessarily connected was more than ~r~erelyview: It was the lau.The essence of an oath was an appeal to God to a witness the truth of what one said. Thus, the oath of an atheist received no recognition. The English courts so ruled prior to American independence,'" and American courts achowledged the principle as late as 1823.'67
Ib5 The Society of Western Gentlemen Revise the Constitution,VA.INDEP. CHRON.,Apr. 30, May 7, 1788, reprinted in 9 DOCUMENTARY HISTORY, supra note 2, at 772,779. ILL See Ramskissenseat v. Barker, 1 Atk. 19,20,26 Eng. Rep. 13,14 (Ch. 1739) (holding that "[tlhe general rule is, that all persons who believe a God, are capable of an oath; and what is universally understood by an oath, is, that the person who takes it, imprecates the rlengeanceof God upon him, ifthe oath he takes isfalse.") (emphasis in original); Omichund

v. Barker, Willes 538, 125 Eng. Rep. 1310 (1744) (a later proceeding in the same case, holding that an oath is a call on God as a witness, and that all witnesses who believe in a God who will judge them, but none others, are competent to take oaths); also reported Omychund v. Barker, 1 Atk. 22,26 Eng. Rep. 15 (Ch. 1744) and Ormichundv. Barker, 1 Wils. K.B. 84, 95 E.R. 506 (Ch. 1745). The Ramkissenseat-Omichund-Omychund-Ormichund decisions rejected the narrower view that the oath-taker had to believe in the holiness of biblical scripture. See HAWKINS, supra note 2, at 434 ("It seems agreed to be a good Exception [to the competency of a witness] That the witness is an Infidel' that is, as I take it, that he believes neither the Old nor the New Testament to be the Word of God, on one of which our Laws require the Oath INSTITUTES *6b (holding that "infidels" should be administered"). See also 2 EDWARDCOKE, could not take oaths), and the discussion in Omichund, supra, and Omychund, supra. '61 Butts V. Swartwood, 2 Cow. 43 1 (N.Y. Sup. Ct. 1823). See also Jackson ex dem. Tuttle v. Gridley, 18 Johns. 98 (N.Y. Sup. Ct. 1820). By the law of England, which has been adopted in this state, it is fully and clearly settled, that infidels who do not believe in a God, or ifthey do, do not think that he will either reward or punish them in the world to come, cannot be witnesses in any case, nor under any circumstances; because an oath cannot possibly be any tie or obligation upon them. Mahomefansmay be sworn on the Koran; Jews on the Pentateuch, and Gentoos and others, according to the ceremonies of their religion, whatever may be the form. It is appealing to God to witness what we say, and invoking punishment, if what we say be false. Id. at 103 (emphasis in original). See also Hunscom v. Hunscom, 15 Mass. (14 Tyng) 184 (1 8 18) (recognizing the common law rule, but applying it only as going to the credibility of

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The most forceful and elaborate federalist exposition of the tenet that an oath was a sufficient test of theism for official functions came fiom James Iredell at the North Carolina ratifying convention. His speech is worth examining at length. It was delivered late in the ratification process - on July 30, 1788, less than a year before Madison introduced the First Amendment in Congress. The speaker was a source of great reliability and prestige. Iredell was not only the North Carolina federalist floor leader, but a formerjudge and state attorney general, member of the governor's council, and a future associate justice of the United States Supreme Court. In substance and in nuance Iredell's speech represented part of the fullydeveloped federalist case on the Constitution and religion. Iredell began by defming an oath as a "solemn appeal to the Supreme Being, for the truth of what is said, by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments, according to that form which will bind his conscience most.T9168 Thus, the very requirement of an oath implied exclusion of atheists and agnostics. After all, lredell said, "there are few people so grossly ignorant or barbarous as to have no religion at all."169 But could oaths be taken properly only by Christians? No, he said: "It was long held that no oath could be administered but upon the New Testament, except to a Jew, who was allowed to swear upon the Old."0 According to this notion, none but Jews and Christians could take an oath; and heathens [i.e., pagans] were altogether excluded.'y171 However, Anglo-American law had become much more liberal than that: At length, by the operation of principles of toleration, these narrow notions were done away. Men at length considered that there were many virtuous men in the world who had not had an opportunity of being instructed either in the Old or New Testament, who yet very sincerely believed in a Supreme Being,

a witness); Rutherford v. ~ o b r e1, D.C. (1 Cranch) 404 @.C. Cir. 1 807) (allowing disbelief in God to go to the competency of the witness). 4 ELLIOT'S DEBATES, note 2, at 196. supra 169 Id. at 197. Hawkins, supra note 2; see also Rex v. Bosworth, 2 Strange 1 1 12,93 Eng. Rep. 1066, 1739): 1067 (K.B. . . . [Tlhe law does not require the New Testament in all cases, particularly as to evidence given by Jews. But the reason of that is, because all Courts desire to have the best security they can for the truth of the evidence, and therefore as it is known they have a more solemn obligation to speak the truth, when sworn on the Old Testament, it is for that reason allowed. 17' ELLIOT'S DEBATES, supra note 2, at 196-97.

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and in a future state of rewards and punishments. It is well known that many nations entertain this belief who do not believe either in the Jewish or Christian religion.ln

"Indeed, if none but Christians or Jews could be examined upon oath, many innocent persons might suffer for want of the testimony of others,"'" he added. For this reason, if for no other, the oaths of believers in more exotic religions were freely admissible:

A very remarkable instance also happened in England, about forty years ago, of a person who was admitted to take an oath
according to the rites of his own country, though he was a heathen. He was an East Indian . ...Not believing either in the Old or New Testament, he could not be sworn in the accustomed manner, but was sworn according to the form of the G e n t ~ o " ~ religion, which he professed, by touching the foot of a priest. It appeared that, according to the tenets of this religion, its members believed in a 'Supreme Being, and in a future state of rewards and punishments. It was accordingly held by the judges, upon great consideration, that the oath ought to be received; they considering that it was probable those of that religion were equally bound in conscience by an oath according to their form of swearing, as they themselves were by one of theirs; and that it would be a reproach to the justice of the country, if a man, merely because he was of a different religion fkom their own, should be denied redress of an injury he had sustained. Ever since this great case, it has been universally considered that, in administering an oath, it is only necessary to inquire if the person who is to take it, believes in a Supreme Being, and in a W e state of rewards and punishments. . . .175 It is, however, necessary that such a belief should be entertained, because otherwise there would be nothing to bind his
Id. at 197.

Ib!
A Telugu or Dravidian Hindu. Cf: SHORTER 1 OXFORD ENGLISH DICTIONARY (5th 1 086 ed. 2002). I" For varying reports on the litigation, see Ormichund v. Barker, 1 Wils. K.B.84, 95 E.R. 506 (Ch. 1745); Omichund v. Barker, Willes 538, 125 Eng. Rep. 13 10 (1 744); Omychund v. Barker, 1 Atk. 2 1,26 Eng. Rep. 15 (Ch. 1739); Ramkissenseat v. Barker, 1 Atk. 19,26 Eng. Rep. 13 (Ch. 1739). See also Fachina v. Sabine, 2 Strange 1104,93 Eng. Rep. 1061 (Council 1738) (approving permission for a Muslim witness to swear on the

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conscience that could be relied on; since there are many cases where the terror of punishment in this world for pejury could not be dreaded.176 Thus, whatever the drafters' motivation for inserting in the Constitution the requirement of oaths and the ban on religious tests,17' the ratification-era representation was that the oath requirement served as a theistic test"' and that theism was an adequate religious requirement for government sewice. IV. THE RELIGION TERMS THE GENTLEMEN'S IN AGREEMENT: THE ESTABLISHMENT CLAUSE We have seen that by the terms of the Gentlemen's Agreement, the policy against establishment was designed to further the policy of fiee exercise, and that free exercise extended to all theists, but only to theists. We have seen further that government service was to be open to all theists, but only to theists. It is logical to deduce, therefore, that the Establishment Clause was designed to protect all theists, but only theists, and that the Clause permitted government to support all faiths on a non-preferential basis. This deduction is supported by a plethora of historical evidence.

1

4 ELLIOT'S DEBATES, supra note 2, at 197-98. I am indebted to Professor Jessie Hill for her observation that the federalist ratificationera defensive argument for the ban on religious tests may not have reflected the drafters' reasons for inserting the test. "' Another way to reach the same result was to argue that an official statement of theism would not contradict the ban on religious tests. This was William Williams's approach. Williams indicated that while he did not favor a religious test, he would have gladly accepted constitutional wording acknowledging the existence and moral judgment of God. For more on this, see the exchange between Ellsworth as the "Landholder" and William Williams in 3 DOCUMENTARY HISTORY, supra note 2, at 589-90, 593. In the exchange, Williams expressed support for an amendment to the Preamble to add the following words: We the people of the United States, in a fr belief of the being and im perfections of the one living and true God . . . He will require of all moral agents an account of their conduct, that all righffid powers among men are ordained of, and mediately derived from God, therefore in a dependence on His blessing and acknowledgment of His efficient protection. . . . Letterfiom William Williams to the Printer, AM. MERCURY, 11, 1788, reprinted in 3 Feb. I)OC'UMENTARY HISTORY, note 2, at 589. supra
17'

In

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ORIGINAL MEANING ESTABLISHMENT OF CLAUSE
A. Evidence that the Establishment Clause Protected Only Theists 1 . Fostering Religion

There is an important background fact tending to show that the Establishment
( 'Ii~use left government free to promote religion: There was a very broad consensus
*

I hat government should foster religion.

To be sure, the influence of the Enlighten-

mcnt had left people less fervid in their faith than those in some prior ages. When

lkderalist Benjamin Rush argued in the Pennsylvania ratifjmg convention that the sed Constitution was the product of divine inspiration and adoption of it a divine he was widely mocked for his super~tition.'~~ later backed Rush
2 DOCUMENTARY HISTORY, supra note 2, at 594-95. Here the Doctor showed the connection between the want ofjustice and fidelity in govemment to individuals, and of individuals to government, and every branch of moral obligation. From this failure of political obligation arose the want of justice between man and man, the difficulty of borrowing and the danger of lending money, the oppressions of landlords, the fiauds of tenants, and the numerous instances of conjugal infelicity and divorces, etc. among the lower classes of people; and lastly, the deficiency in parishes to pay their ministers agreeably to their subscriptions. This last instance of a failure in moral obligation, the Doctor lamented, as having a melancholy influence upon the happiness of our country; for, said he, where public worship is not maintained, it will be difficult to preserve religion; and where there is no religion, there will be no morals. Where there are no morals, there can be no government, and where there is no government, there can be no liberty.

5

.... . . . Here the Doctor added, that he believed the same voice that
thundered on Mount Sinai, "thou shalt not steal," now proclaimed in our ears, by a number of plain and intelligible providences, "thou shalt not reject the new federal government." id. Rush later complained about this report of his speech and claimed that what he actually said was more nuanced. ' * O According to the editors of DOCUMENTARY HISTORY,'Wewspaper writers in Pennsylvania,New York, and Massachusetts criticized Rush's assertion that the Constitution HISTORY, supra note 2, at 48. Competingversions was divinely inspired." 15 DOCUMENTARY of the speech were reprinted widely. Id; see also 2 DOCUMENTARY HISTORY, supra note 2, at 596 (reporting that Robert Whitehill "regretted that so imperfect a work should have been ascribed to God"); William Findley, Hampden, PI'IT. G m , Feb. 16, 1788, reprinted in 2 DOCUMENTARY HISTORY, supra note 2, at 663-64, stating that "[sluch characters may also be expected to promise us such extravagantly flattering advantages to arise fiom it, as if it was accompanied with such miraculous divine energy as divided the Red Sea and spake with thunder on Mount Sinai.") (footnote omitted); Helvidius Priscus II, BOSTON INDEP.CHRON., Jan. 10, 1787, reprinted in 15 D ~ C ~ E N T AHISTORY, RY supra note 2, at 333.

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down from his claim that the Constitution was divinely inspired, but still maintained that the ratification certainly was.lgl That Rush had gone too far is suggested by Gouverneur Morris's observation on varying claims that the Constitution was the h i t of divine or demonic influence. "Medio tutissimus ibis," he wrote:182 are you safest if you go down the middle."' But, then again, Morris was a man of the world, and to return to the main point, the contemporaneous "middle" was quite a bit more religious than it is today. One is reminded of the observation by that proto-Whig whose legal commentaries educated so many of founding generation's lawyers, Sir Edward Coke: "[Qn religion . . . if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And take away reverence, you shall never have obedience . . . The ratification record is full of invocations of the deity by people other than ~ u s h-~ ~ not mainly, or principally, fiom religious outliers. Madison, who ' and
Yet it is not probable the metaphisical [sic]disquisitions of a southern doctor, wl persuade the world that the majority of the late il CONVENTION were so much the peculiar favourites of heaven as to receive an immediate inspiration for the model of a government, that should subjugate a country which appears to those who are really religious, and who believe in a providential direction, to have been remarkably under divine protection in the various steps that led to its independence. Id. (footnote omitted); The Minority o the Connecticut Convention, PHILA. INDEP. f GAZET~EER, 2 1-24,178 8, reprinted in 15 DOCUMENTARYHISTORY, supra note 2 , at 570 Jan. ("[Tlhey have been told by their leaders it is an excellent form of government, given from heaven."). Rush also had proposed unsuccessfbllythat the Pennsylvania ratifying convention open each session with a prayer. See 2 DOCUMENTARY HISTORY, supra note 2, at 328. 18' See Benjamin Rush, Observations on the Fourth of July Procession in Philadelphia, PENN. MERCURY, 15, 1788, reprinted in 18 DOCUMENTARY July HISTORY, supra note 2, at 266. I do not believe that the Constitution was the offspring of inspiration, but I am as perfectly satisfied, that the union of the states, in itsform and adoption, is as much the work of a divine providence, as any of the miracles recorded in the old and new testament were the effects of a divine power. Id. (footnote omitted) (emphasis in original). Letter fiom Gouverneur Moms to James LaCaze (Feb. 21, 1788), in 16 DOCUMENTARY HISTORY, supra note 2, at 171 ('While some have boasted it as a Work from Heaven others have given it a less righteous origin and charged it to the old great Devil. Medio tutissimus ibis[.]"). '83 Author's translation. 3 THE SELECTED WRITINGS AND SPEECHES OF SIR EDWARD COKE 1198 (Steve Sheppard ed., 2003). E.g., MASS. CENTINEL,9, 1788, reprinted in 15 DOCUMENTARY Jan. HISTORY, supra note 2, at 565 ("And may the guardian God of our 'dear country' inspire the Convention of

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was relatively skeptical about the claims of religion,186 not skeptical enough to was

refrain from interpreting American successes as the product of divine favor.18' Many others placed a similar interpretation on events.188

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r

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this Commonwealth with wisdom, disinterestedness and patriotism equal to the display of those virtues in our sister States who have already erected Three Pillars of the glorious labrick [sic] of the Federal Republick [sic].") (emphasis added); Aristides [AlexanderContee I f anson], REMARKS ON THE PROPOSED OF A FEDERAL PLAN GOVERNMENT 3 1-Mar. 27, (Jan. 1 788), reprinted in 15 DOCUMENTARY HISTORY, supra note 2, at 5 17,548 ("Should Heaven, In its wrath, inflict blindness on the people of America; should they reject this fair offer of permanent safety and happiness . . . ."); WiNiam Penn IZ, INDEP.GAZETTEER, 3, 1788, Jan. reprinted in 2 DOCUMENTARY HISTORY,supra note 2, at 1437 (microform supp.) (recommending "waiting with confidence in HIM who constantly watches over his favorite creature man") (capitalization and emphasis in original). '" He fkequently expressed skepticism as to whether organized religion was a force for good. See, e.g., THE FEDERALISTNO. (James Madison), supra note 2, at 94-95; see also 19 id. at 270-71; Letter fiom James Madison to Thomas Jefferson (Oct. 24 & Nov. 1, 1787), in 13 DOCUMENTARY HISTORY, supra note 2, at 448. '" THEFEDERALIST 37 (James Madison), supra note 2, at 184-85. NO. The real wonder is, that so many difficulties [of drafting the Constitution] should have been surmounted; and surmounted with a unanimity almost as unprecedented, as it must have been unexpected. It is impossible for any man of candour [sic] to reflect on this circumstance, without partaking of the astonishment. It is impossible for the man of pious reflection, not to perceive in it a finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution. Id. "' See, e.g., Foederal [sic] Constitution, PENN.G ~ T T EOct. 10,1787, reprinted in 13 , DOCUMENTARY HISTORY, supra note 2, at 362. The philosophers will no longer consider a republic as an impracticable form of government; and pious men of all denominations will thank God for having provided, in our foederal [sic] constitution, an Ark, for the preservation of the remains of the justice and liberties of the world. Id. at 364. See also 15 DOCUMENTARY HISTORY,supra note 2, at 249 (remarks of Samuel Johnson) (stating at the Connecticut ratifjmg convention, "Though no enthusiast, I cannot but impute it to a signal intervention of divine providence, that a convention fkom States differing in circumstances, interests, and manners, should be so harmonious in adopting one grand system."); MASS. CENTINEL, 19,1788, reprinted in 15 DOCUMENTARY Jan. HISTORY, supra note 2, at 569. So far as the discussion of the Constitution has proceeded, the defence [sic] it has received is astonishing - divine providence on this occasion, affords one of those few opportunities which occur in the revolution of human affairs, for the unfolding and displaying the amazing powers of the human mind -and from the progress already made in convincing those who were before unconvinced, and bringing to view the latent perfections of the system . . . . Id. See also Letter fiom Simeon Baldwin to James Kent (Mar.8, 1788), in 16

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Some people remained firm adherents of - and here is an opportunity to use a famous word - antidisestablishmentarianism: They believed in some sort of direct preference or "establishment" for favored kinds of religion, which they justified as necessary to promote public virtue.la9Religion had, in the words of law and economics, "positive externalities" with "public good" characteristics that rendered it worthy of compulsory support.'" The most commonly-cited illustration was a negative one: "Rogues' Island" (Rhode Island), where immorality and bad faith seemed to have run riot.19' It was not coincidental, some said, that Rhode Island was the place with the highest wall of separation between church and state.19*
~ ~ O C ~ ~ THISTORY, A R Y supra note 2, at 350-5

1. I must believe that the supreme being, whose hand is so visible in the settlement of this Country - in its rapid population - the extent of territory over which the People have spread -in the general diffusion of knowledge among them, which is not equalled [sic] by the people of any territory on earth - & in, the surprizing [sic] union of the whole in the Cause of Liberty - has designed something great, noble, glorious fiom such a Country - such a people -such a revolution. And I will add fiom such a change in the Consti[tu]tion as the United Wisdom of the U.S. has proposed, from the most perfect models of Govt. both in Theory & practice which have appeared on earth & been sanctioned by the approbation of the wise politicians who have gone before us[.]

Id.

Cf: supm notes 147 and 149 and accompanying text. HAMBURGER, supra note 2, at 67. Those who opposed established religions sometimes were accused of wanting a "wall of separation" between church and state - a phrase that, far fiom being an ideal, was an accusation. Id. at 65,66,68; see also McConnell, supra note 2, at 1441 (noting that the Virginia religious assessment proposal was based on moral grounds); HOWE, supra note 2, at 2 6 2 7 (outlining the externality theory). 19' See, e.g., 3 ELLIOT'SDEBATES, supra note 2, at 28 (remarks of Gov. Edmund Randolph) (stating at the Virginia ratifying convention, "Rhode Island -in rebellion against integrity- Rhode Island plundered all the world by her paper money; and, notorious for her uniform opposition to every federal duty . . . ."). '* See, e.g.,Foederal[sic] Constitution, PENN.G m , Oct. 10, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 365 ("See, in Rhode Island, the bonds of society and the obligations of morality dissolved by paper money and tender laws."); see also An American: To Richard Henry Lee, in 15 DOCUMENTARY HISTORY, supra note 2, at 174. Have not the rights of property been violated & religion & morality trampled under foot by instalment [sic] & suspension Laws, by a paper legal tender (in case of suit) in six states, by p h d m m n laws to discharge specific & pecuniary contracts in every species of property however worthless in itself or useless and inconvenient to the creditor. Id. (strikeout in original). This general repudiation of the regime in Rhode Island renders slightly ridiculous the claim that the Establishment Clause was inspired by the thoughts of Roger Williams. C J HOWE, supra note 2, at 5-8 (tracing the phrase "wall of separation" to Williams);
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As ConnecticutRepresentativeBenjamin Huntington's sarcastic observations in the first Congress were summarized: "By the charter of Rhode Island, no religion could be established by law; could give a history of the effects of such a regulation; indeed the people [are] now enjoying the blessed h i t s of it."lg3 One did not have to be an establishmentarian to favor direct government intervention in favor of religion. There was wide support for laws designed to reinforce respect for religion. Among these were penalties -often harsh ones imposed for blasphemy.lg4 Even Thomas Jefferson, the arch-secularist of his time, supported such measures. 19' State government practices during the 1776-1789 period included extensive public assistance to a wide range of religious denominations.lg6 Some denied it was the proper role of government - at least of the federal government - to promote particular doctrines or sects directly. Yet even these believed it proper for government to promote morality by fostering faith indirectZylg' and to promote faith by fostering morality.lg8 The American Mercury editorialized that "[tlhe advancement of religion, which beyond dispute is of infnitely the greatest moment, is not directly the object of civil go~ernment;"'~~ but "Happy indeed if civil government might subserve [religion's] interest!"2w Laws establishing a just order ensured that the vicious could not prey upon the virtuous. As the essayist the "Foreign Spectator" opined in urging that the Constitution be adopted, the

[a

good of all denominations reflect, that the common interest of religion, and the honest predelection [sic] you have for your particular modes of worship, both require the independency, safety, and general welfare of your country [and] shudder at the

HAMBURGER,supra note 2, at 3845,50-53 (discussingWilliams's views and anticlericalism

and denying that they were particularly influential at the founding). lg3 ANNALS, supra note 2, at730. Actually, Rhode Island, that reputed rehge oftolerance, barred Jews from citizenship and Catholics from public office. McConnell, supra note 2, at

1425-26.
See ANTIEAU, note 2, at 78-80 (describing some existing penalties). supra CJ:CORD, supra note 2, at 140 (citing Jefferson's support for laws banning profane swearing). See ANTLEAU, supra note2, at 62-86 (outlining such practices). See also id. at 121-22 (describing the state of public opinion). lg7 Id. at 89-91 (collecting contemporaneous cornments on the obligation of government to promote religion and virtue). Ig8 HAMBURGER, note 2, at 76-77. supra Ig9 AM. MERCURY, 21, 1788, in 3 DOCUME~ARY Jan. HISTORY, note 2, at 312, supra 3 14-1 5 (Microform Supp.). 2oo Id. at 315.
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impieties and outrages on humanity committed by monsters in human form in the scenes of general anarchy.201 Because of the overwhelming consensus that government should foster religion and morality, whether or not the Constitution would do so became a criterion by which people judged the document. The Poughkeepsie Country Journal summarized differences between federalists and antifederalists thus: [Hlere, a very decided majority think (and with them thy friend) that a union of the American States, as exemplified in the new constitution, is friendly to property; consistent withfreedom; and favorable to morality and religion. Whereas in thy county I am told many think exactly the reverse.

....
I think it [the Constitution] also favorable to the morals of the people. For if jealousies, factions, cabals and war have a tendency to compt the manners[,] that political situation which prevents jealousies, factions, cabals and war is desirable on a moral account: and if on a moral, certainly on a

201 Nicholas Collin, Foreign Spectator, PHILA. INDEP. GAZETTEER, 2,1787, reprinted Oct. HISTORY, supra note 2, at 292. See also Meeting of Philadelphia in 13 DOCUMENTARY Association of Baptist Churches,N . Y . PACKET, 12 1787, reprinted in id. at 374-75. Oct. After finishing the particular business on which they met as a religious body, it was agreed to incorporate witb their general circular letter, the following recommendation to their people of the proposed plan of the Foederal [sic] Government - which has been handed to the Printers by a correspondent, and redounds much to their honor as a society. . . . [Tlis favourable opportunity offered to establish an EFFICIENT government; which, we hope may, under God, secure our invaluable rights, both civil and religious. Id. (capitalization and emphasis in original). See also 2 DOCUMENTARY HISTORY, supra note 2, at 186 (reporting a squib fiom the PENN.GAZETTE,Oct. 17, 1787). A minister of the Gospel, through the medium of our paper, begs leave to ask, whether men can be serious in regard to the Christian religion, who object to a government that is calculated to promote the glory of GOD, by establishing peace, order and justice in our country? - and whether it would not be better for such men to renounce the Christian name, and to enter into society with the Shawanese or Mohawk Indians, than to attempt to retain the blessings of religion and civilization, with their licentious ideas of government. Id. (footnote omitted) (capitalization in original). 202 POUGHKEEPSIE COUNTRY Mar. 18,1778, reprinted in 16 DOCUMENTARY J., HISTORY, supra note 2, at 409-10 (emphasis in original).

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As was true of other foundational values, such as liberty and republicanism, the sides disagreed on the application -but not on the basic principle:203 Government should, directly or indirectly, foster religion. In this climate of public opinion, no Establishment Clause erecting a "wall of separation" between religion and state ever would have been adopted or even seriously proposed.

2. The Faith-Based Ideology of Disestablishment
Two other clues to the theistic orientation of the Establishment Clause are the identity of those who lobbied for disestablishment and the justifications they advanced. The disestablishment coalition was not composed of atheists, agnostics - or even deists or unitarians. It was comprised of religious enthusiasts who certainly did not favor government neutrality on the subject of religion in general? In other words, they shared the public consensus that government should foster religion.z05Moreover, these groups would have perceived any suggestion that they wanted a "wall of separation" between state and faith not as a compliment, nor even as a description, but as an insult.*06 For them, the relationship between good government and religion was interactive and symbiotic, rather than rigid and distant.'07 It is a curious fact that strict separationists often celebrate Madison's Memorial and Remonstrance Against Religious Assessments (1785)~'~ Jefferson's and and Madison's Virginia Statute for Religious Freedom ( 1 786)'* as testimony for their views. The premier example of this is the Supreme Court's reliance on those

'03 See Robert G. Natelson, Federal Land Retention and the Constitution's Property Clause: The Original Understanding, 76 U . COLO. L. REV. 329, 337-39 (2005) (summarizing some common constitutional values held by the founding generation). . *04 ANTIEAU, Supra note 2, at 52-53 (identifying Presbyterians and Baptists as leaders in the Virginia disestablishmentbattle); HOWE,supra note 2, at 8-9; McConnell, supra note 2, at 1438-41 (noting that establishment was opposed by intense religious sects). For an example of a Baptist tract fiom the ratification era, see A Baptist, FREEMAN'S J., Jan. 23, 1788, reprinted in 2 DOCUMENTARY HISTORY, supra note 2, at 1557-58 (Microform Supp.) (expressing fear that under the Constitution the federal government could establish a hostile religion). See supra P r 1V.A.1. at 206 HAMBURGER,supra note 2, at 65-68. *07 Id. '08 See MCDONALD, supra note 2, at 44-45 (discussing the background of the Remonstrance). 209 This reliance no doubt arises fiom the fact that the Memorial and Remonstrance declares that religion is "wholly exempt" from the cognizance of civil society. This was, however, quite an atypical view, and not part of the context of the First Amendment. See supra Part II.D.

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documents in Everson v. Board ofEducation210 Flast v. C ~ h e n . ~One reason and " such reliance is curious is that, as already noted, Jefferson had little to do with adoption of the First Amendment, and Madison intimated that the measure did not express his own views.212But the more important reason is both the Remonstrance and the Statute rest their justification squarely on the demands of religion and of God. The Remonstrance was directed specifically against an "establishment of religion" -taxes imposed to support Christianity. It states in part: Because we hold it for a hdamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man . . . . This right is in its nature an unalienable right. . . . because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe . . . .2'3 The Statute is, as its name suggests, a measure protecting free exercise, but it decries establishments as well: Whereas, Almighty God hath created the mind fiee; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations [sic] tend only to beget habits of hypocrisy and meanness, and are a departurefiom theplan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as
330 U.S. 1, 12-13 (1947). 392 U.S. 83, 103-04 (1968) (citing the Remonstrance for the position that "[tlhe concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general.") (emphasis added). 212 Seesupra notes 22-23 and accompanying text (discussing Jefferson's role);supra notes 67'73-75, and inpa note 289 and accompanying text (discussing Madison's concessions). James Madison, Memorial andRemonstrance against Religious Assessments ( 1 785)' in 5 THEFOUNDERS'CONSTITUTION 82 (Phillip B. Kurland & Ralph Lerner eds., 1987).
210

was in his Almighty power to do, that the impiouspresumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical . . . .214

In both we see precisely the samejustification at work for disestablishment that we saw supporting free exercise and the ban on religious tests: mankind's duty to God.215Remove the theism, andyou remove the justification. During the debate over the Constitution, the parties specificallyrelied on theism as a basis for proposed constitutional amendments prohibiting a federal establishment. The Virginia ratifjmg convention, for example, proposed an amendment stating in part:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence . . . and that no particular religious sect or society ought to be favored or established, by law, in preference to others.216 The North Carolina ratifying convention adopted very similar language;17 heeding, among others, the words of James Iredell: "The divine Author of our religion never
*I4 The Virginia Statute for Religious Freedom (Jan. 16, 1786), available at http://www. lva. lib.va.uslwhatwedokl2/bor/vsrftext.htm##trans (emphasis added) (last visited Aug. 25, 2005). 215 See, e.g., supra notes 1 3 9 4 3 and accompanying text. 216 3 ELLIOT'S DEBATES, supra note 2, at 659 (emphasis added). 217 4 ELLIOT'S DEBATES, supra note 2, at 244. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others. Id. See also id. at 208 (quoting Richard Spaight at the North Carolina ratifjing convention as stating, "As to the subject of religion, . . . . [n]o sect is preferred to another p y the Constitution]. Every man has a right to worship the Supreme Being in the manner he thinks proper.").

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wished for its support by worldly authority. Has he not said that the gates of hell shall not prevail against it?"218 Shortly after Connecticut ratified the Constitution, one William Williams who had voted for the Constitution at his state's mtifjmg convention -publicly challenged Ellsworth, anonymously writing in his "Landholder" identity, to state whether, despite Ellsworth's opposition to religious tests, he would have accepted wording in the Constitution's Preamble acknowledging the existence and moral As judgment of God. Ellsworth affirmed that he would support such noted earlier, there was no constitutional protection, in his opinion -or in almost anyone else's - for "professed atheism."220

3. An Objection, and a Response, on the Theistic Basis for the Establishment Clause
Advocates of the modern "strict separation" and "neutrality" approaches to the Establishment Clause maintain that the Clause prohibits official aid or preference for religion over non-religion.221 The effect of this approach, of course, is to assure atheism or agnosticism equal standing with religion for constitutional purposes. Probably the most respected legal historian in this camp is Professor Leonard W. Levy, who expounds it in his 1994 book, The Establishment Clause: Religion and the First Amendment. He reasons as follows: The founding generation meant by the word "establishment" not only exclusive establishments but also systems that subsidized Christianity or Protestantism generally." Seven states had either general Christian or general Protestant "establishments" at the time the First Amendment was ratified: Connecticut,
2'"d. at 194. 219 See supra note 178 (referencing this interchange). Ellsworth responded, "Against HISTORY, note 2, at 593. supra preambles, we have no animosity." 3 DOCUMENTARY 220 Supra note 137 and accompanying text. U 1 CHEMERINSKY, supra note 2, at 986-87 (pointing out that advocates of both strict separation and "neutrality" favor the approach of Lemon v. Kurtzman, 403 U.S.602 (1971), which requires that government actions neither be intended to benefit religion nor have that principal or primary effect); see also Engel v. Vitale, 370 U.S. 42 1, 443 (1 962) (Douglas, J., concurring) ("The First Amendment leaves the Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic -the nonbeliever - is entitled to go his own way."); Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947). For examples of commentators adopting this view, see LEVY, supra note 2. See, e.g., Douglas Laycock, "Nonpreferential" to Religion: A False ClaimAbout Original Intent, 27 W M . Aid & MARY REV. 875,902 (1986) ("Cuny, Levy, and I agree on the central point: the framers L. of the establishment clause had no specific intention to permit nonpreferential aid to religion. Levy and I agree on the stronger formulation that the Framers intended to forbid such aid."). 2u LEVY, supra note 2, at 75-76.

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Massachusetts, New Hampshire, Vermont, Maryland, South Carolina, and Georgia.223 In each of those states the population was so universally affiliated with sects within the established group (Christian or Protestant) that as a practical matter those establishments amounted to "nonpreferential" aid to all religion (i.e., all relevant sects)."24 Therefore, by abolishing such "establishments," the First Amendment abolished all systems that favor religion over irreligion.225 However, a close reading of Professor Levy's book -even without reference to other sources -induces one to question his argument. For example, at several points he undercuts his fmt premise by honestly achowledging that many educated people (he cites some distinguishedlawyers) didnot think systems of nonexclusive subsidy were "establi~hments."~~~ At another point he concedes that the dominant usage in New England identified "establishment" only with exclusive establishm e n t ~ , 'and elsewhere he tells us that some Virginians thought ~~ In support of his second premise - that the population of states with nonpreferential "establishments" was such that those "establishments" amounted to subsidies of all religion -Levy writes: In general, where Protestantism was established, it was synonymous with religion, because there were no Jews and Roman Catholics or too few of them to make a difference; and where Christianity was established, as in Maryland, which had many Catholics, Jews were scarcely known. Where Jewish congregations existed, as in Savannah and Charleston, state law reflected obliviousness to their presence rather than deliberate discrimination, and no evidence exists to show that Jews were actually taxed to support ~ h r i s t i a n i t y . ~ ~

Id. at 42-78. Id* 225 Id. at 75-77. 226 Id. at 43,47; see also id. at 88 (citing Rep. Francis Curnmins as defining an establishment as "the state[] giving preference to any religious denomination"). 227 Id. at 47-48. For an example of this usage in New England, see JONATHANMAYHEW, A DEFENCE THE OBSERVATIONS THE CHARTER CONDUCTOF SOCIETY OF ON AND THE FORTHE PROPAGATION THE GOSPELIN OF FOREIGN PARTS64 (Boston 1763) (refening to the prevailing "establishment of religion" as the Church of England). Id. at 107 (noting that, in Virginia, opponents of ratifying the Bill of Rights interpreted the Establishment Clause as banning only a national religion). 229 Id. at 76.
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224

Professor Levy does not clarify, however, what he means by "too few of [Jews or Catholics] to make a difference."')' He acknowledges that Jews were a presence in both Savannah, Georgia and Charleston, South ~ a r o l i n a ;indeed, the Jewish ~~' Yet presence in Savannah was ~ignificant.~" both states had "Christian" establishments:)) so neither state practiced nonpreferentialism. Was the legislature "oblivious" because Jews were politically powerless? If so, this helps explain why there was a Christian establishment, but it does not make such an establishment nonpreferential. Moreover, Professor Levy does not explain why state lawmakers should be "oblivious" to Jewish congregations. Even if they were, were they similarly oblivious of other nonChristians? Perhaps the American Indians who had mixed with the state population but retained native beliefs could be mentally marginalized - but what of the more verbal adherents of deism? In sum, it is unlikely the First Amendment's ban on a national "establishmenty' was a ban on nonpreferentialism. On the contrary, when people referred to an "establishment of religion," they generally referred either to a single state church or to some other mechanismwhereby one denomination or group of denominationswas favored over

230

231

Id. Id.

McConnell, supra note 2, at 1424. See id (discussing Georgia); i . at 1425 (discussing South Carolina). d U4 One could cite dozens of works in support of the foregoing, but I will content myself with three f o England and three from America: rm ENGLAND: e.g., AN APPEAL THE GOOD SENSE THE INHABITANTS OF GREAT see, TO OF BRITAIN CONCERNING THEIRRELIGIOUS RIGHTS AND PRJVILEGES 78-79 (London 1770) (contrasting the large attendance at services of other churches, particularly the Methodist, with the poor attendance at Church of England services, and referring to the latter as an "establishment of religion"); P. BARCLAY, PERSUASIVE THE PEOPLE SCOTLAND A TO OF IN ORDER REMOVE TO THEIR W I C E TO THE BOOKOF COMMONPRAYER P 63-64 (London 1713) (advocating "an Establishment of Religion" to promote some religious doctrines and ANOTHER HIGHROAD TO HELL:AN ESSAYON THE discourage others); JOHN CHATER, PERNICIOUS NATURE D E S T R U C ~ AND EFFECTS THE MODERN OF ENTERTAINMENTS A-A.2 (London 1767). AMERICA: e.g., MOSES see, DICKINSON,SERMON A PREACHED BEFORE GENERAL THE ASSEMBLY THE COLONY CONNECTICUT1-32 (New-London, Connecticut 1755) OF OF 3 (contending that while all religions should be tolerated, the Christian religion ought to be established and supported by the government "and not be put upon a Level with mere Heathenism"); EBENEZER GAY,NATURAL RELIGION,DISTJNGUISH'D REVEALED: AS FROM A SERMON PREACHED THE ANNUAL DUDLEIAN-LECTURE AT A HARVARD-COLLEGE T IN CAMBRIDGE (Boston 1759) (supporting an establishment of religion "free from impure 32 Mixtures of Heathenish and Popish Errors and Superstitions"); MAYHEW, supra note 227.
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B. Evidence that the Establishment Clause Protected AN Theists
On the opposite end of the spectrum fiom those who claim the Establishment Clause forbade preference for religion over non-religion are those who argue that it did no more than interdict a "national church" and protect state religious establishm e n t ~ ?According to this narrow interpretation of the Clause, official favors to a ~~ broad religious grouping, such as Christianity or Protestantism, do not violate the ban on establishments. There is more historical evidence to support this narrow interpretation of the Establishment Clause than to support the view that the Clause prohibits all assistance to religion. The most common system of "establishmentyyin the eighteenth century was a state church such as the Church of England.236 Some participants in the ratification process spoke about establishments in this sense, usually expressing it as state preference for one "~ect,'"~ "society,"238 or "church."239Madison called this an "exclusive[] establish[ment]" and spoke against
23' See Zelmanv. Simmons-Harris,536 U.S. 639,678 n.2 (Thomas, J., concurring) (citing Sch. Dist. v. Schempp, 374 U.S. 203,309-1 0 (1963) (Stewart, J., dissenting)); c. m u , f supra note 2, at 1 4 0 4 2 (expressing federalism or states' rights as possibly "one reason" for the Establishment Clause). For a modern defense of this purely '"federalism" view, see SMITH, FOREORDAINED FAILURE, supra note 2, at 1 7 4 3 ; see also DREISBACH, supra note 2, at 60 (supporting the federalism view, but overlooking federal implied powers by inaccurately stating that all matters not "explicitly" entrusted to the federal government were reserved to the states or people). 236 See, e.g.,AN APPEAL,supra note 234; CHATER, supra note 234; MAYHEW, supra note 227. See also inpa notes 2 3 7 4 1 and accompanying text. 237 See, e.g., 2, BOSTON INDEP.CHRON.,Dec. 6, 1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 359 ("If the rights of conscience, for instance, are not sacredly reserved to the people, what security will there be, in case the government should have in their heads a predilection for any one sect in religion?") (emphasis in original); see also 2 ELLIOT'S DEBATES, supra note 2, at 202 (remarks of Oliver Wolcott) (speaking &om a DEBATES, supra federalist perspective at the Connecticut ratifying convention); 4 EILIOTT'S note 2, at 208 (remarks of Richard Spaight) (speaking at the North Carolina ratifLing convention); 3 ELLIOT'S DEBATES, supra note 2, at 204 (remarks of Edrnund Randolph) (speaking at the Virginia ratifying convention). 238 See infra note 24 1. 239 An Old mig,PHILA. INDEP. GAZETTEER, Nov. 1,1787, reprintedin 13 D~CUMENTARY HISTORY, note 2, at 5 4 W 1 (offering an antifederalist perspective). supra I hope and trust that there are few persons at present hardy enough to entertain thoughts of creating any religious establishment for this country; although I have lately read a piece in the newspaper, which speaks of religious as well as civil and military ofices, as being hereafter to be disposed of by the new government; but if a majority of the continental legislature should at any time think fit to establish a form of religion, for the good people of this continent, with all the pains and penalties which in other countries are annexed to the

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it at the Virginia ratifying c o n v e n t i ~ n .Moreover, both New York and Rhode ~~ Island proposed amendments to prevent federal preference for any "religious sect or society.""' However, "the meaning of the word establishment was not precisely fixed,"242 since it could refer to other kinds of government preferences for denomination or group of denominations over others."' A review of the entire course of ratification shows that public opinion finally coalesced around the idea of a broader restriction on federal power than merely protection for state establishments and a ban on a national church. Shortly after the Constitution became public, Tench Coxe, one of its most influential advocates, celebrated "catholicism in ecclesiastical affairs" that is, nonpreferentiali~m.~~ Some antifederalists adopted a similar position,
-

establishment of a national church, what is there in the proposed constitution to hinder their doing so? Id. (emphasis in original). 240 3 ELLTOT'SDEBATES, supra note 2, at 330. 241 Ratification of the Constitution by the State oflthode Island (May 29,1790), The Avalon Project at Yale Law School, available at http://www.yale.edu/lawweb/avalon~const/ ratri.htm (last visited Aug. 25,2005) (stating that "no particular religious sect or society ought to be favoured, or establishedby law in preference to others."); Ratification ofthe Constitution by the State of New York (July 26, 1788), The Avalon Project at Yale Law School, available at http://www.yale.edu/la~~eb/avalonlconst/(last visited Aug. 25,2005) (stating "[tlhat the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be fhvoured or established by Law in preference of others"). 242 Feldman, supra note 2, at 380. 243 See supra note 234 for examples of both uses of the term "establishment of religion." See also JOSEPH PRIESTLEY, ESSAY THE FIRST AN ON PRINCIPLES GOVERNMENT 1-02 OF 20 (London 1771) (referring to a system requiring contribution to the sect of one's choice as an "establishment of religion," where only Christian sects qualified). 244 See An American Citizen, On the Federal Government, PHILA. INDEP. GAZETTEER, Sept. 26, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 247. To take a proper view of the ground on which we stand, it may be necessary to recollect the manner in which the United States were originally settled and established, - Want of charity in the religious systems ofEurope and ofjustice in their political governmentswere the principal moving causes, which drove the emigrants of various countries to the American continent. The Congregationalists, Quakers, Presbyterians and other British dissenters, the Catholics of England and Ireland, the Hugonots of France, the German Lutherans, Calvinists, and Moravians, with several other societies, established themselves in the different colonies, thereby laying the ground of that catholicism in ecclesiastical affairs, which has been observable since the late revolution: Religious liberty naturally promotes corresponding dispositions in matters of government. Id. at 248.

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praising the virtues of equal treatment for all religions, denominations, and sects without any proviso that those religions, denominations, or sects be Protestant or Chri~tian.*~' Similarly, an amendment approved by a committee of the Maryland convention (but rejected by the whole) would have proscribed not only preference for a particular "sect or society," but any "national religion."*& Leading federalists seem to have adopted nonpreferentialismpartly as a natural consequence of their understanding of the Constitution's oaths -that such oaths amounted to a necessary and sufficient test of theism2" As noted earlier, nonpreferentialism meshed well with state government practices during the 1776-1 789 period, when public assistance to a wide range of religious denominations was In any event, people on both sides began to judge the Constitution by the criterion of whether it furthered equal treatment for all religions. One antifederalist author wrote critically of the Constitution because it seemed to reflect either of two extremes, both of which were unacceptable to most people: f From the proceedings of the convention, respecting liberty o conscience, foreign politicians might be led to draw a strange conclusion, viz. that the majority of that assembly were either men of no religion, or all of one religion; such a conclusion naturally follows their silence on that subject; they must either have been indifferent about religion, or determined to compel the whole continent to conform to their own.249

245 Centinel, PHILA. FREEMAN'S Oct. 24, 1787, reprinted in 13 DOCUMENTARY J., HISTORY, note 2, at 466; Timothy Meanwell, PHILA. supra INDEP. GAZETTEER, Oct. 29,1787, reprinted in 14 DOCUMENTARY HISTORY, supra note 2, at 51 1; Letter M,Dec. 25, 1787, reprinted in 17 DOCUMENTARY HISTORY, supra note 2, at 268, 274 ('The following, I thmk, will be allowed to be unalienable or fundamental rights in the United States: -No man, demeaning himself peaceably, shall be molested on account of his religion or mode of worship[.]"); Petition Against Confirnation o the Ratijication o the Constitution, in 2 f f DOCUMENTARY HISTORY, note 2, at 7 10,711 ("That the rights of conscience should supra be secured to all men, that no man should be molested for his religion, and that none should be compelled contrary to their principles and inclination to hear or support the clergy of any

one religion."). 246 2 ELLIOT'S DEBATES, supra note 2, at 553 ("That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty."). See supra Part 111. Supra Part W.A. 1. 249 Philadelphiensis, PHILA. FREEMAN'S Nov. 28,1787,reprinted in 14 ~ X C U M ~ T A R Y J., HISTORY, note 2, at 25 1, 253 (emphasis in original). supra

"' "'

On the federalist side, the "Landholder" and William Williams publicly exchanged letters2'' in which they agreed that the Constitution should recognize God in a non-denominational way.25' Another Connecticut citizen chimed in with a proposal for a religious test acceptable to almost all theists:
I swear, in the name of the all-seeing DEITY, that I will henceforth be a slave to no sect or party of men . . . . I likewise solemnly declare that I consider myself as a citizen of the intellectual world and a subject of its Almighty Lawgver and Judge. That by Him I am placed upon an honorable theater of action to sustain, in the sight of mortal and IMMORTAL beings, that character and part which He shall assign me, in order to my being trained up for perfection and immortality - and shall, from this time forth, devote my life to the service of GOD, my country, and mankind. So help me GOD!"2

I already have quoted at length from James Iredell's speech at the North Carolina ratifjmg convention, arguing for equal recognition of the oaths of people of all religion^.^') Apparently, most North Carolina delegates firmly rejected the bigoted arguments that if the Constitution were adopted, America's doors would open to "Jews and pagans of every kind to come among us."2" Rather, North Carolina's temporary recalcitrance derived from other so~rces.~'' Indeed, North Carolina and other states took affirmative steps to implement nonpreferential theism. For example, North Carolina, Virginia, and Rhode Island all recommended exemptions for groups that objected to oaths or military service.2s6 New

"' Supra note 178 and accompanying text.
See 3 D~CUMENTARY HISTORY, note 2, at 587-90,593. supra A New Test, NEW HAVEN GAZETTE, Jan. 3 1, 1 788, reprinted in 3 DOCUMENTARY HISTORY, note 2, at 588 (emphasis in original). The piece was titled "A NEW TEST supra and proclaimed that it was "[hlumbly proposed to those who wish for a test in the new Constitution." Id. 253 See supra notes 168-78 and accompanying text. 254 4 ELLIOT'S DEBATES, note 2, at 199 (quoting David Caldwell, speaking at the supra North Carolina ratifjmg convention). 255 ~ A Usupra note 2, at 1 5 - 5 6 . , 256 TWO the Virginia amendments were as follows: of 14th. That every freeman has a right to be secure from all unreasonable searches and seizures . . . all warrants . . . without information on oath (or aflmtation of aperson religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive . . . .
252

.. . .
19th. [Alny person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear

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~arnpshire?'' Virginia:'* New Y ~ r k , North Car~lina:~ Rhode Island261 ~'~ and all proposed guarantees of fiee exercise and bans on establishments. South Carolina's proposal to treat the oath explicitly as a religious test was an additional endorsement of nonpreferential theism?* Not a single convention, not even that of pious ~ a s s a c h u s e t t sought preference for Protestantism or even Chri~tianity.~~~ s~~~ This
arms in his stead. 3 ELLIOT'S DEBATES, supra note 2, at 658-59 (emphasis added). DEBATES, supra note 2, Similar amendments were adopted elsewhere. See 2 ELLIOT'S at 244 (discussing North Carolina's proposal); Ratijication of the Constitution by the State of Rhode Island, May 29, 1790, The Avalon Project at Yale Law School, available at http://www.yale.edu/lawweb/avalon/const/ratr (last visited Aug. 29, 2005) ("[Alny person religiously scrupulous of bearing arms,ought to be exempted, upon payment of an rs equivalent, to employ another to bear a m in his stead."). 257 Ratification of the Constitution by the State of New Hampshire (June 21, 1788), The Avalon Project at Yale Law School, available at http://www.yale.edu/lawweb/avalonIconst/ ratnh.htm (last visited Dec. 29,2004) ("Congress shall make no Laws touching Religion, or to i n h g e the rights of Conscience."). 258 3 ELLIOT'S DEBATES, supra note 2, at 659. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the ffee exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others. Id. 259 Ratification of the Constitution by the State of ~ e York (July 26, 1788), The Avalon w Project at Yale Law School, available at http://www.yale.edu/lawweb/avalon~const/r (last visited Aug. 29,2005) ("[Tlhe People have an equal, natural andunalienable right, fhely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others."). 260 4 ELLIOT'S DEBATES, supra note 2, at 244 ("That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the fiee exercise of religion, according to the dictates of conscience; and that no particular religious sect or society ought to be favored or established by law in preference to others."). See RatiJicationof the Constitution by the State of Rhode Island (May 29, 1790), The Avalon Project at Yale Law School, available at http://www.yale.edu/laweb/avalon/const~ ratri.htm (last visited Aug. 29,2005). 262 See supra note 164 and accompanying text. 263 Massachusetts did not offer an amendment on the subject of religion. See 2 ELLIOT'S supra note 2, at 177-78. DEBATES, 2" Thus, the Court's suggestion in Wallace v. Jaflree, 472 U.S. 38 (1985), that Christianity was thought to be preferred, is simply inaccurate. Id. at 52 & 11.36 (citing JOSEPH STORY, COMMENTARIES THE CONSTITUTION THE UNITED ON OF STATES 1874, at 593 § (1 801)).

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unanimity emerged despite the desires of some antifederalists for a Christian government and the practical need to secure antifederalist votes for ratification. This unanimity was remarkable, but ideologically consistent: The antiestablishment principle flowed from the free exercise principle. By free exercise, the founders meant protecting God's dominion over the individual conscience, so long as the individual admitted God's dominion over that conscience -no matter what one's faith might be.265 In the aftermath of ratification, apologists for the Constitution trumpeted the inclusive theism of the new regime. h July 1788, Tench Coxe addressed the skeptical folk of Western Pennsylvania:

I want those good people to read the constitution quietly by themselves, and to judge like reasonable and free men for themselves. :. . They will see that every man among them, whether [Plrotestant or [Clatholic, rich or poor, may elect or be elected. The Assembly may chuse [sic] any of them a Senator, or the people may chuse any of them a foederal [sic] Representative, or any of them may be chosen Vice-President or President of the United States. Nothing in the constitution forbids it, though they must be sensible that a man must be very good and very wise, to deserve and receive such great trusts from the Assembly and from the people . . . . In other countries religious tests would prevent him, though he were ever so wise, ever so good, or ever so much beloved and esteemed. . . . But our new foederal [sic] constitution admits all, whether [Plrotestant, or [Clatholic, or [Plresbyterian, or [E]piscopalian, &c. for it expressly says there shall be no religious test. . . . The foederal [sic] connexion, established on these liberal and generous principles . . . which it has pleased God to raise up in the world. . . . They will not render to each other nor to the government, tithes, nor tenths, nor free gifts (as they have been preposterously termed) nor any species of taxes, as religious men or societies. Nothing will be expected, nothing will be required but peace and good will, and brotherly loving kindness. This excellent quality of the new government will warm and expand our bosoms whenever we reflect upon it. The liberality and virtue of America is establishing perfect equality and freedom among all religious denominations and societies, and will no doubt produce to us a great reward . . . . There alone can the sincere votaries of religion enjoy their lives, their civil and
265

Supra Part 1I.D.

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religious rights and property, without suffering fiom their attachment to that church in which they have been born and bred, and which they believe to be right and true? Coxe published those words the same month James Iredell presented his speech at the North Carolina ratifying convention wherein Iredell stirringly affkmed respect for oaths sworn by Jews, Hindus, and other nonChri~tians.'~'The following month, the noted clergyman Manasseh Cutler further proclaimed the new national doctrine of inclusive theism: By the Constitution now established in the United States, religious as well as civil liberty is secured. Full toleration is granted for free inquiry, and the exercise of the rights of conscience. No one kind of religion, or sect of religion, is established as the national religion, nor made, by national laws, the test of truth. Some serious Christians may possibly tremble for the Ark, and think the Christian religion in danger when divested of the patronage of civil power. They may fear inroads from licentiousness and infidelity, on the one hand, and from sectaries and party divisions on the other. But we may dismiss our fears, when we consider that truth can never be in real hazard, where there is a suficiency of light and knowledge, and full liberty to vindicate it. . . Iredell had explicitly included Jews and Hindus in the new 0rder.2~~ Coxe had explicitly included Catholics and Protestants and proclaimed "perfect equality and freedom among all religious denominations and so~ieties.""~ Cutler a h e d that no sect nor any one kind o religion would be preferred - apparently not even f ~hristianity.'~' That such were the terms of the Gentlemen's Agreement was reflected in the response fiom America's largest single non-Christian minority - the Jews. On September 7 , 1787, Jonas Phillips, a prominent Philadelphia had petitioned
--

; i
f

266 A Friend of Society and Liberty, To the ~ ~ ~ A of the Western Couniies of N T S Pennsylvania, PENN.GAZETTE, 23, 1788, reprinted in 18 DOCU~NTARY Jul. HISTORY, supra note 2, at 281-82 (emphasis in original). 267 See supra notes 168-78 and accompanying text. 268 Manasseh Cutler, Sermon at Marietta, Northwest Tem'tory, Aug. 24, 1788, in 18 DOCUMENTARY HISTORY, note 2, at 342. supra 269 2 ELLIOTT'S DEBATES, supra note 2, at 193-98. 270 See supra note 266 and accompanying text. 27' See supra note 268. 272 He was a founding member of Philadelphia's MickvC Israel Congregation. See Jewish

the federal convention to adjust any oath for participating in public life so it could be taken by people of his faith.273Once the Constitution was ratified, Jews were very much among the celebrants. Just as importantly, they were welcomed as such. On August 2,1788, the Comte de Moustier wrote to the Comte de Montmorin from New York: The city of Newyork [sic] did not even wait for the State Convention to, give its decision. It had its procession at a time when it was strongly doubted that the State would adopt the Constitution. . . . I had been invited [to a celebration dinner], and I attended. . . .To the left of Congress were its Officers and the members of the Clergy fiom the City, Anglicans, Presbyterians, Catholics, Lutherans, Calvinists, Jews, all indiscriminately seated, except that the Anglican Bishop had taken the right from all the others and had said the blessing.274 Philadelphia eclipsed even this show of unity. Its parade of celebration was quite a spectacular affair. We have a lengthy eye-witness account by Dr. Benjamin Rush, reading in part: The Clergy formed a very agreeable part of the Procession They manifested, by their attendance, their sense of the connection between religion and good government. They amounted to seventeen in number. Four and five of them marched arm in arm with each other, to exemplify the Union. Pains were taken to connect Ministers of the most dissimilar religious principles together, thereby to shew [sic] the influence of a fiee government in promoting christian charity. The Rabbi o the Jews, f locked in the arms o two ministers o the gospel, w e a most f f delightful sight. There could not have been a more happy emblem contrived, of that section of the new constitution, which opens all its power and offices alike, not only to every sect of christians, but to worthy men of every religi~n.~"

History in Philadelphia, available at h~://www.en.wildpedia.orglWJewish-histoy-inPhiladephia (last visited Sept. 6, 2005). 273 The text of the letter appears at 3 FARRAND, supra note 2, at 78-80. *" Letter from Comte de Moustier to Comte de Montmorin (Aug. 2, 1788), in 18 DOCUMEN~AARY HISTORY, supra note 2, at 308-09 (footnote omitted) (emphasis in original). ns BenjaminRush, Observations on the Fourth ofJuly Procession in Philadelphia, PENN. MERCURY, July 1 5 , 1 788, reprinted in 1 8 DOCUMENTARYHISTORY, note 2, at 265 supra (footnote omitted) (first emphasis added).

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V.CONGRESSIONAL ADOPTION THE RELIGIONCLAUSES OF
E

i ;

!

When fiamed by the terms of the Gentlemen's Agreement, the pieces of the congressional process snap easily into place. In essence, that process was one of shaping the Fist Amendment to fit the adopters' understanding of the Gentlemen's ~~reernent?~~ In Part 1.B, I discussed in a general way the First Congress's adoption of the Bill of Rights. In this Part, I focus more specifically on the debate over the Establishment Clause. On June 8,1789, Madison rose in the House of Representatives to introduce his amendments. After some discussion he detailed each of these. There were three pertaining to religion. One was that "[nlo state shall violate the equal rights of con~cience.'"~~ Another was that "no person religiously scrupulous of bearing arms shall be compelled to render military service in per~on.'"'~ The former was Madison's own idea.279The latter had been endorsed by the conventions of only two statesza0(although Rhode Island was later to make it three)F8' Neither amendment survived Congress. Madison's remaining proposal, however, was a genuine effort to embody the "religion terms" of the public bargain. It read as follows: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.282

276 ANTEAU, supra note 2, at 208 ("Moreover, the task of the First Congress was not to write into law the personal views of its members; rather it w s to assimilate the proposals a submitted by the states together with what was thought to be politically satisfactory and in the best interests of both religion and government."). 277 ANNALS, supra note 2, at 452. 278 Id. at 45 1 . 259 See supra note 68 and accompanying text. 280 See 3 ELLIOT'S DEBATES, note 2, at 659 (reporting one of Virginia's proposed supra amendments as providing "[tlhat any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead); 4 ELLJOTT'S DEBATES, note 2, at 244 (reporting an identical proposal h m North supra Carolina). 281 Ratification of the Constitution by the State of Rhode Island, May 29, 1790, The Avalon Project at Yale Law School,available at http://www.yale.edu~lawweb/avalon/const/ ratri.htm (last visited Aug. 29,2005) ("[Alny person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent, to employ another to bear anns in his stead."). 282 ANNALS, supra note 2, at 45 1.

The phrase that eventually became the foundation of the Establishment Clause was, As of course, "nor shall any national religion be e~tablished.'"'~ befits the Clause's role in M e r i n g fiee exercise, this language was embedded between two fiee exercise provisions. It was wider than a prohibition, as existed in some state Rather, it was constitutions, of preference for any particular "sect or ~ociety."~" in similar to the amendment proposed by the convention minority in Maryland285 that it proscribed a national "religion." Thus, Madison's language also would have banned preference for Protestantism or for Christianity in general. Over two months passed before the House of Representatives discussed this proposal once again. On August 15, Madison explained that his proposed wording meant that "Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience."286Representative Daniel Carroll of Maryland urged adoption of the amendment because "[ble thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed.'"" Significantly, Madison did not claim that this language represented his own views. When Connecticut's Roger Sherman expressed skepticism about the need for the amendrnentY2'' Madison, like Representative Carroll, offered public sentiment as the justification: Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that [the Necessary and Proper Clause] . . . enabled [Congress] to make laws of such a nature as might infiinge the rights of conscience, and establish a national religi~n.'~'
283

'" See supra note 24 1.
285 286

Id

See supra note 94. ANNALS,supra note 2, at 758. Id at 730.

Id Id That he did not claim that the language reflected his own thoughts renders
unnecessary Professor Hamburger's speculation that Madison had changed his mind from the time of the Remonstrance, in which he had argued "that Religion is wholly exempt from its [Civil Society's] cognizance." HAMBURGER, note 2, at 106(discussing James Madison, supra Memorial and Remonstrance (1 785), available at http://www.law.ou.edu/hist~remon.html (last visited Sept. 20, 2005)). Given the context of the Remonstrance, however, and the understanding of the time, it is unlikely that Madison meant the words, "Religion is wholly exempt from its cognizance," in quite the way we would understand them. See supra notes 134-37 and accompanying text (quoting Oliver Ellsworth's views that government should not meddle in religion, but supporting legal sanctions against blasphemy and atheism).

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Other members of Congress had their own ideas of the precise language needed to comply with the Gentlemen's Agreement, and they sought to shape the proposed amendment to comply with their understanding of the bargain. For example, the Gentlemen's Agreement contemplated no constitutional protection for atheism.290 Accordingly, Peter Sylvester of New York wanted reassurance that the amendment would not "have a tendency to abolish religion alt~gether,'"~'and Benjamin Huntington of Connecticut "hoped. ..the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but hs not to patronise [sic] those who professed no religion at all."292T i could explain, of course, why the same houses of Congress that adopted the Establishment Clause saw no inconsistency in hiring chaplains to offer prayers293 in resolving to reserve or a "day of public thanksgiving and prayer, to be observed by achowledging, with gratefbl hearts, the many signal favors of Almighty God."2" Under the Gentlemen's Agreement the term "establishment" had a broader meaning than merely a government Accordingly, Elbridge Gerry of Massachusetts thought the passage "would read better if it was, that no religious doctrine shall be established by law."296Huntington asked for assurance that the amendment would not interfere with the multiple establishments in New England2" - one of the few suggestions that a goal of the amendment was to protect state

establishment^.^^^
Still, Madison's language was too narrow to satisfy the terms of the Gentlemen's Agreement because even if the amendment banned a "national religion," the federal government might favor a group of religions - such as Christianity and Judaism (or Protestantism and Catholicism) - over others. Thus, Samuel Livemore of New Hampshire suggested that the clause be re-written to read "that

Supra Parts II.D & 111. w 1 ANNALS, supra note 2, at 729. 292 Id. at 730-31. See also Feldman, supra note 2, at 410. 293 See Rosenberger v. Rector & Visitors of the Univ. of Va., 5 15 U.S. 8 19, 858 (1 995) (Thomas,J., concurring); see also Marsh v. Chambers, 463 U.S.783,794 (1983) (sustaining use of legislative chaplains to open the day with prayer). 2P4 ANNALS, supra note 2, at 9 14. 29S See supra Part 1V.B. 246 ANNALS, supra note 2, at 730.
290

297
298

Id.

For another, see PETERSBURG VA. GAZE'ITE, July, 26, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 2, at 178-79 ("Let Congress be invested with an independent power over the states, without violating the religious tenets or customs of any perticular [sic] state."). Nevertheless, ProfessorHowe was probably correct to conclude that this was not a major motivation for the Establishment Clause. HOWE, supra note 2 , at 22-23; see also Feldman, supra note 2, at 408 (concluding that this was not a major motivation for the Establishment Clause because no one thought federal government had power to interfere with state establishments anyway).

Congress shall make no laws touching religi~n,'"~~ the House initially passed and ~ this ~ e r s i o n . ' But this was too broad for the Gentlemen's Agreement because it would have prevented Congress from using its express and implied powers to foster all religions equally. The Senate responded with a proposal stating, "Congress shall make no law establishing articles of faith or a mode of worship.'"'' The House rejected it in favor of Fisher Ames's version: "Congress shall make no law establishing religion,'"'* which made it clear that multiple establishments were interdicted, whether of sects or of religions. The fmal language, of course, has a similar effect. Meanwhile, Congress removed all reference to "rights of conscience" from the amendment, thereby eliminating any suggestion that it protected atheistic or nonreligious claims.'03 Finally, insertion of the phrase, "Congress shall make no law" apparently reflected a decision not to accommodate the fear that the President and Senate might use the treaty power to interfere with matters of faith. That fear, however, had not been widely expre~sed.'~

The Establishment Clause was not crafted to reflect the notions of Jefferson or Madison or any other small collection of individuals -not even the individuals who happened to sit in the First Congress. The Establishment Clause was designed to fulfill part of the public bargain - the Gentlemen's Agreement -pursuant to which the Constitution was ratified. Thus, reconstructing the "religion terms" of the public bargain enables us to illuminatethe meaning of the Clause to a far greater degree than previously thought possible."' Based on the terms of the Gentlemen's Agreement, the following conclusions seem fairly certain:
299

ANNALS, supra note 2, at 731. LEVY, supra note 2, at 101.

Id. at 102. Id. at 101 ;ANNALS,supra note 2, at 766. 303 Whether "rights of conscience" w s dropped to eliminate redundancy or to limit First a Amendment to religion, the effect is the same: "the fiarners deliberatelyconfined the clause to religious claims." McConnell, supra note 2, at 1496. Incongruously, while conceding that the original meaning of the religion clauses would deny atheists religious exemptions, McConnell claims without support that 'Yo subject an atheist to civil disabilities would be a violation of free exercise." Id. at 1500. I rather think it would be a violation of equal protection instead. 304 I have found three instances. See supra notes 120-22 and accompanying text. 3 0 ' See, e.g., CHEMERINSKY, supra note 2, at 114 1-43 (discussing perceived historical uncertainties about the meaning of the religion clauses) (citing LAURENCE TRIBE, H. AMERICAN O N S ~ O N A L 1158-60 (2d ed. 1988) for supposedly different views C LAW about religion among the framers); NOWAK ROTUNDA, & supra note 2, at 1411 (claiming "there is no clear history" on the religion clauses).
302

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Before adoption of the First Amendment, congress had no express power over religion. The First Amendment did not change that? Nevertheless, as many participants in the debate recogmzed, Congress could exercise implied powers over religion through the incidental powers doctrine recognized in the Necessary and Proper Clause.307 Thus, Congress had plenary control over religion in the District of Columbia, in all other federal enclaves, and wide control of it in the territories. Congress could impose excise taxes on church sales, define the content of religion in the armed forces and in the militia, grant or deny religious exemptions fiom military service, regulate the interstate commerce of religious sects, and promote some or all faiths in dealings with the Indians. Moreover, the federal government could impact religion by treaty.'08 The formal role of the Establishment Clause in the Constitution was as an exception to the Necessary and Proper Clause. The Establishment Clause qualified the Necessary and Proper Clause by interdicting certain means of executing enumerated powers even if those means were otherwise necessary and proper. It is apparent, however, that the Establishment Clause did not eliminate entirely federal power over religion?
See supra note 102 and accompanying text. See supra notes 103-2 1 and accompanying text. In the Necessary and Proper Clause, the word "necessary" meant absolutely or reasonably necessary or in a customary and convenient manner for executing an enumerated power. "Proper" meant in accordance with fiduciary norms. See Natelson, Necessary and Proper, supra note 2, at 26 1 4 5 . However, Congress could not resort to its enumerated powers merely as a ''pretext" to govern religion in the states. See McCulloch v. Maryland, 17U.S. (4 What.) 316,357-59 (18 19) (Marshall, C.J.). Nor does the rule of interpretation we contend for, sanction any usurpation, on the part of the national government; since, if the argument be, that the implied powers of the constitution may be assumed and exercised, for purposes not really connected with the powers specifically granted, under color of some imaginary relation between them, the answer is, that this is nothing more than arguing fiom the abuse of constitutional powers . . . ; that the danger of the abuse will be checked by thejudicial department, which, by comparing. the means with the proposed end, will decide, whether the connection is real, or assumed as the pretext for the usurpation of powers not belonging to the government. Id. at 357. See supra notes 1 0 6 2 1 and accompanying text. 309 Cf: notes 297-98 and accompanyingtext. My conclusion thus conflicts somewhatwith that of Professor Kurt Lash, who argues that the contemporaneous meaning of the Clause is one of "no federal power" over religion -although he concedes some exceptions. See Lash, supra note 2, at 1096-99. The "no federal power" view has encouraged some to search for
306
307
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The Establishment Clause was designed to buttress free exercise by requiring the federal government, to the extent its legislation touched religion, to treat all faiths in a nondiscriminatory manner. This requirement obviously went beyond a mere ban on a national church. Rather the Establishment Clause was an extension of the trust duty of impartiality that already pervaded the Constit~tion.~'~ The impartiality of the Establishment Clause was not perfect. Like the Free Exercise Clause, the Establishment Clause was seen as irrelevant to the irreligious. Both provisions protected only theists. Those who did not believe in God did not have a "religion" within the meaning of the First Amendment and had no standing under that Arnend~nent.~" other words, In ' out under the original meaning, Michael ~ e w d o w fis~ of court. The Clause said that "Congress shall make no law."313 It did not address federal interference with religion through mechanisms other than congressional lawmaking, such as the treaty power."' As everyone concedes, the Clause did not apply to the state^.^" Even the most thorough original meaning analysis cannot solve all problems. For example, original meaning analysis is not conclusiveon the question of whether the cctheism"protected by the Clause is limited to belief in a God who rewards moral conduct and punishes immoral conduct?16 Many of the ratifiers spoke in terms of such a God, but others acknowledged that deists - believers in a more impersonal divinity -should be protected as well."'

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Establishment Clause meaning in the Fourteenth Amendment. See, e.g., Richard Albert, Beyond the Conventional Establishment Clause Narrative, SEATIZE .L. REV. 329 (2005). U I think it is important, however, to get the meaning of the First Amendment correct before we move to the Fourteenth! 310 See Natelson, Public Trust, supra note 2, at 11 3 6 6 8 . CJ CHEMERINSKY, note 2, at 1146 (summarizing Welsh v. United States, 398 supra U.S.333 (1970), which held that belief in God was not a necessary part of a "religion" for selective service purposes). 312 See supra note 4 and accompanying text. 313 U.S. CONST. amend. I. See supra notes 119-2 1 and accompanying text. 315 See Kurland, supra note 2, at 843 (stating that the evidence "overwhelmingly supports" supra note 2, at 1-32 (arguing that the First Amendment was this conclusion); HOWE, targeted at federal establishments, not state establishments). 316 This was seen by many as the "teeth in an oath. See supra notes 158-59 and accompanying text. As comments such as those of Theophilus Parsons show, however, it probably was not absolutely necessaryto a contemporaneous definition of religion. See supra note 152 and accompanying text. See, e.g.,supra note 152 and accompanying text (reporting the remarks of Theophilus Parsons at the Massachusetts ratifjmg convention).

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Professor Robert Cord, whose own study of the Establishment Clause led him to conclusions similar to my own, poses a problem of application. America today is a more religiously diverse country than in the late eighteenth century:I8 so equal treatment of all faiths presents more challenges. A law subsididng religion in the District of Columbia and defining it to include Christianityand Judaism but to exclude Islam, might have been constitutional in 1820 when there were no Muslims present to be disadvantaged. Today, however, our population includes a significant number of Muslims?1g Moreover, a prayer enacted for District of Columbia public schools that invoked "Almighty God,"as did the New York State Regents prayer in Engel v. Vit~le,"~' would violate the original meaning of the Establishment Clause today -not because it offended atheists or agno~tics,)~' because some people worship a God but who is extremely powerful, but not, technically speakmg, "almighty."3" The conclusion that the religion clauses protect only theists does not, of course, eliminate other constitutional protections for atheists and agnostics. They can appeal to the Fourteenth Amendment's Equal Protection for protection
See CORD, supra note 2, at 165; see also CHEMERINSKY, note 2, at 1142-43. supra The number of Muslims in the United States is not known with any degree of exactitude, and estimates vary widely. See THE ISLAM PROJECT, http://www.theislamproject. org/educationKJnited_States.html(last visited Aug. 28,2005) (reporting reputable estimates for the year 2000 as 1,104,000 and 4,132,000). 320 370 U.S. 42 1 (1962). The prayer, which I regularly said as an elementaxy school child in New York State, was "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Id. at 422. 321 C id. at 443 (1962) (Douglas, J., concurring) ("The First Amendment leaves the ' Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic - the nonbeliever - is entitled to go his own way."). This view would seem to vary, at least in emphasis, fiom Justice Douglas's pronouncement when writing for the court ten years earlier in Zorach v. Clauson, 343 U.S. 306 (1952): We are a religious people whose institutions presuppose a Supreme Being. . . . We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodatesthe public service to their spiritual needs. Id. at 313-14. See also HOWE, supra note 2, at 14 (discussing the differences between Douglas's views in the two cases). The conclusion of this Article suggests that Douglas's earlier opinion was more constitutionally accurate. 322 For example, some Jews, such as Rabbi Harold S. Kushner, resolve the "all good/all powerful" dilemma by concluding that God is not all powerful. See HAROLD KUSI-BTER, S. WHENBADTHINGS HAPPEN GOOD TO PEOPLE129 (198 1) (arguing that some things are "too hard even for God). 323 U.S. CONST. amend. XIV, 5 1 ("No State shall . . . deny to any person within its
318 319

against state discrimination and to the Fifth Amendment's Due Process Clau~e'~' for protection against federal discrimination. Exactly how much protection these provisions offer, however, is an unanswered question. So there are issues that original meaning analysis does not resolve. Yet it does resolve difficulties and inconsistencies that have bedeviled courtsand commentators for. years. Perhaps, after all, it is better to devote our energy to solving real constitutional problems than to be trapped in snares created only by our own misunderstanding.

jurisdiction the equal protection of the laws."). 324 The Fifth Amendment Due Process Clause reads, 'No person shall. . . . be deprived of life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. V. See, e.g., Bolling v. Sharpe, 347 U.S. (1954). My conclusion is that equal protection principles are 497 part of the Necessary and Proper Clause, not the Due Process Clause. See Natelson, Public Trust, supra note 2, at 117 1-74. Seegenerally Natelson, ,Necessaryand Proper, supra note 2, at 243-322.